Morgan v Chief Executive of the Department of Corrections

[2022] NZHC 3481

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-594

[2022] NZHC 3481

UNDER

the Habeas Corpus Act 2001

IN THE MATTER OF

an application for a writ of habeas corpus

BETWEEN

GARETH DAVID MORGAN

Applicant

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing:	On the papers
Counsel:	J Tupaea for Applicant W Taffs for Respondent
Date:	16 December 2022

JUDGMENT OF EATON J

[1]    On 15 December 2022, Mr Morgan made application for a writ of habeas corpus. The application was referred to me as a matter of urgency, in accordance with s 9 of the Habeas Corpus Act 2001 (the Act).

[2]    In his unsworn affidavit filed in support of the application, Mr Morgan alleged he was unlawfully arrested in Dunedin and detained in custody from 23 November 2022. He says he was arrested for breaching a “not to consume, possess or be found intoxicated in a public place” bail condition, but that he was not subject to any such condition of bail.

MORGAN v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2022] NZHC 3481 [16

December 2022]

[3]    Mr Morgan deposes that he appeared in the District Court at Christchurch on 15 December 2022 and made an application for bail. His evidence is that he was refused bail because he does not have a suitable address.

[4]    In my minute of 15 December, I questioned whether the alleged deficiencies in the lawfulness of Mr Morgan's detention had been overtaken by the reconsideration and refusal of his application for bail. I directed the registrar to convene a telephone conference today to hear the application.

[5]    This morning Mr Tupaea, on behalf of Mr Morgan, having reflected further on the merit of the application, gave notice he will file a notice of discontinuance. That notice has now been filed.

[6]Section 14(3) of the Act provides:

(3)Subject to section 13(2), a Judge must determine an application by—

(a)refusing the application for the issue of the writ; or

(b)issuing the writ ordering the release from detention of the detained person.

[7]    The relevant date to consider an application for habeas corpus is the date of the hearing of the application. A prior deficiency in the lawfulness of an applicant’s detention will be overtaken by a subsequent lawful detention. 1

[8]    I have now sighted the warrant to detain Mr Morgan signed by the Judge on 15 December. I am therefore satisfied that his current detention is lawful.

[9]The application for a writ of habeas corpus is dismissed.

Solicitors:
Crown Solicitor, Christchurch

1      Misiuk v The Chief Executive of the Department of Corrections [2010] NZCA 480, at [25].