N v Police - [2017] NZHC 840

THE NAMES OF THE APPLICANT AND HER HUSBAND HAVE BEEN REDACTED TO PROTECT THEIR IDENTITY BECAUSE THE APPLICANT IS SUBJECT TO ORDERS MADE UNDER THE PROTECTION OF PERSONAL AND PROPERTY RIGHTS ACT 1988

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2017-404-828 [2017] NZHC 840

UNDER the Habeas Corpus Act 2001

BETWEEN

N Applicant

AND

NEW ZEALAND POLICE Respondent

Hearing: 1 May 2017

Appearances:

Applicant in support of application
N E Copeland for Respondent

Judgment:

1 May 2017

JUDGMENT OF LANG J

[on application for writ of habeas corpus]

This judgment was delivered by me on 1 May 2017 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

N v NEW ZEALAND POLICE [2017] NZHC 840 [1 May 2017]

[1] In the present proceeding the applicant, Mrs N, purports to seek orders under the Habeas Corpus Act 2001 (the Habeas Corpus Act). In reality, the application is advanced by her husband, Mr N

Background

[2] Mrs N resides in a secure rest home by virtue of orders made by the Family Court under the Protection of Personal and Property Rights Act 1988 (PPRRA). The Family Court made interim orders placing her under the medical care of the Counties-Manukau District Health Board (CMDHB) on 22 February 2016. It made final orders to the same effect on 17 August 2016. At that time the Family Court also revoked an enduring power of attorney that Mr N had previously held in respect of his wife.

[3] The Family Court directed that Mrs N was to “enter into and reside in secure dementia level care” at a nominated facility. She was to receive “all medical care and attention as directed by her medical practitioners as nominated by CMDHB from time to time”. The orders were made by the Family Court because Mrs N suffers from moderate dementia with significant cognitive impairment. Mrs N has resided at the nominated facility since 24 February 2016.

[4] Perhaps anticipating what was likely to occur in the future, the Family Court directed that the facility “may call the Police to provide assistance as is necessary in the circumstances to transport [Mrs N] to or return her to her place of residence” in accordance with the orders of the Court.

[5] On 22 February 2016, the same day as the Family Court made the interim orders, Mr N applied for orders under the Habeas Corpus Act releasing his wife from the care of the nominated facility. Thomas J declined that application in a judgment delivered on 26 February 2016.1 Subsequent appeals to the Court of Appeal and
Supreme Court against the judgment of Thomas J were unsuccessful.2

1 AN and DN v Chief Executive Officer Counties Manukau District Health Board [2016] NZHC
277.
2 AN v Chief Executive Officer Counties Manukau District Health Board [2016] NZCA 226; AN v
Counties Manukau District Health Board [2016] NZSC 74.

[6] On 15 March 2017, Mr N made a further application seeking orders…

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.

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Details

Case: [2017] NZHC 840
Decision Date: 1 May 2017

CaseChat Overview and Summary

The applicant in this case, Mrs N, sought orders under the Habeas Corpus Act 2001, arguing that she was unlawfully detained in a secure rest home. Mrs N’s husband, Mr N, is the person who filed the application on her behalf. The respondent in the case is the New Zealand Police, who had taken Mrs N from her home and returned her to the rest home. Mrs N had been placed under the care of the rest home by the Family Court under the Protection of Personal and Property Rights Act 1988 due to her moderate dementia with significant cognitive impairment. Mr N had previously held an enduring power of attorney for his wife, but this was revoked by the Family Court. The primary legal issue the court had to decide was whether Mrs N was being unlawfully detained by the police and the rest home, and if so, whether she should be released.

The court determined that the habeas corpus procedure is intended for situations where a person is being unlawfully detained. Given that the events leading to the application had concluded, with Mrs N no longer in the care of the police or the rest home, the court found that Mr N could no longer claim that his wife was being unlawfully detained. The court also noted that the circumstances surrounding the removal of Mrs N from her home and her current whereabouts might need further judicial scrutiny in the future. The court dismissed the application, as Mrs N was no longer being detained by the police or the rest home.

This judgment highlights the importance of the habeas corpus procedure in addressing unlawful detentions. However, the court’s decision also underscores the need for timely and accurate claims of unlawful detention, as the relief sought under the Habeas Corpus Act becomes moot if the detention has already ended. The case also raises questions about the appropriate care and living arrangements for individuals with dementia, which may require further judicial consideration.

Orders