Mitchell v The Queen - [2016] NZHC 2718

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-893 [2016] NZHC 2718

UNDER the Habeas Corpus Act 2001

IN THE MATTER

of an application for a writ of habeas corpus

BETWEEN

KERRYN MITCHELL Applicant

AND

THE QUEEN Respondent

Hearing: 9 November 2016

Counsel:

Applicant in Person
V McCall for Respondent

Judgment:

17 November 2016

JUDGMENT OF CLIFFORD J

Introduction

[1] Ms Mitchell is currently remanded in custody on two charges: one of attempting to breach a protection order and one of assault on a police officer. Ms Mitchell applies for a writ of habeas corpus for release from that custody.

[2] Ms Mitchell accepts that she is in custody pursuant to regular, lawful warrants. But, pointing to the recent decision of the Supreme Court in the cases of Messrs Marino and Booth on the calculation of pre-sentence detention,1 she says this is one of those rare cases where the writ can be used to challenge unlawful
administrative decisions made prior to the issue of those warrants.

1 Booth and Marino v R [2016] NZSC 127.

MITCHELL v R [2016] NZHC 2718 [17 November 2016]

[3] That is, properly calculated, the period she has and will spend in pre-sentence detention on the charges she now faces constitutes exceptional circumstances justifying her release now.

Facts

[4] The factual context for this application is lengthy, dating back to the grant of temporary and final protection orders against Ms Mitchell in 2007 and 2008 in favour of the complainant, her former partner. Ms Mitchell has breached those orders on numerous occasions and in a variety of ways. Ms Mitchell has been in custody since she was first arrested on breach charges on 2 December 2012, save for a period on bail in July and September of this year.

[5] Following a review of the District Court sentencing notes and subsequent Court of Appeal decisions relating to Ms Mitchell, I understand the position as regards Ms Mitchell’s pre-sentence detention to date to be as follows.

[6] Following her arrest on 2 December 2012, Ms Mitchell pleaded guilty to charges of intentional damage and breach of a protection order. On 10 September
2013 Judge Becroft sentenced her to two years and one months’ imprisonment.2

Taking account of time spent in custody on remand since 2 December 2012, Ms Mitchell’s release date for that sentence would have been 2 January 2015.3

[7] By 2 January 2015 Ms Mitchell was on remand in custody for charges related to breaches that had occurred in November 2012. Accordingly, she was not released on that date. On 11 March 2015 Judge Tuohy sentenced Ms Mitchell, then still in custody, to four months’ imprisonment on those charges, a sentence of short duration. Taking account of that time on remand from 2 January 2016, the release date for Ms Mitchell from Judge Tuohy’s sentence would therefore have been
2 March 2015 – two months after her previous sentence had expired. This is because

2 R v Mitchell DC Wellington CRI-2012-032-3561, 10…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mitchell v The Queen

Details

AGLC: Mitchell v The Queen [2016] NZHC 2718
Case: [2016] NZHC 2718
Decision Date: 17 November 2016

CaseChat Overview and Summary

The applicant, Kerryn Mitchell, applied for a writ of habeas corpus seeking her release from custody, where she was remanded on charges of attempting to breach a protection order and assaulting a police officer. The applicant argued that her detention was unlawful due to errors in the calculation of her pre-sentence detention, citing the recent Supreme Court decisions of Marino and Booth. The Court was required to determine whether the applicant's detention was lawful and whether the writ of habeas corpus could be used to challenge the administrative decisions made prior to the issue of the warrants.

The Court held that the legality of detention is determined as at the date of the habeas corpus application. The applicant accepted the lawfulness of the warrants remanding her in custody on the most recent charges she faces. She was admitted to bail on those charges, but most recently, the District Court declined bail. On that basis, the status quo, pending any appeal from that decision or a further application for bail, is that the applicant's detention is lawful. The Court declined the application for habeas corpus, stating that the applicant's remedy was to appeal her most recent bail decision or make a further application for bail.

The Court considered the matters raised on the basis of an appeal from the most recent bail decision. The Court noted that the applicant may be able to argue that the Marino decision applies to her as she suggests. However, the Court held that the applicant's time in custody since 8 September would constitute pre-sentence detention if she is convicted on the current charges. The Court further held that the length of the applicant's pre-sentence detention on those charges alone provides the basis for a reasonably compelling submission that a release on bail would now be appropriate.

The Court concluded that had this been an appeal against the most recent bail decision, it would have been minded to grant that appeal provided certain conditions were met. The Court noted that any appeal the applicant did file from the most recent bail decision would be dealt with urgently. The Court also suggested that the applicant and the respondent might agree on terms of renewed bail.

Orders