Paul v Burns, Regional Commissioner, Department of Corrections
[2016] NZHC 1466
•29 June 2016
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV-2016-419-000205 [2016] NZHC 1466
BETWEEN TE KAWENATA HOU PAUL
Applicant
AND
JEANETTE BURNS, REGIONAL COMMISSIONER, DEPARTMENT OF CORRECTIONS
First Respondent
MICHAEL BUSH, COMMISSIONER OF POLICE
Second Respondent
Hearing: 29 June 2016 Appearances:
Applicant in Person
R Douch for the Crown
P Cornegé as Amicus CuriaeJudgment:
29 June 2016
ORAL JUDGMENT OF HINTON J
Counsel/Solicitors:
R Douch, Almao Douch, Hamilton
P Cornegé, Barrister, Thackeray Chambers, Hamilton
Party:
Te Kawenata Hou Paul
TE KAWENATA HOU PAUL v JEANETTE BURNS, REGIONAL COMMISSIONER, DEPARTMENT OF CORRECTIONS [2016] NZHC 1466 [29 June 2016]
[1] Mr Paul applies, via his representative, Ms Rooney, for a Writ of
Habeas Corpus under s 14(1) of the Habeas Corpus Act 2001.
[2] The application does not comply with the High Court Rules, but I deal with it as if it did comply.
[3] The basis of the application is that Mr Paul’s detention on remand is unlawful, because the New Zealand legal system is unlawful and also because two of the charging documents refer to the wrong name, “Pouraa” instead of “Paul”, and another says “Paul aka Pouraa”.
[4] The respondents oppose the granting of the Writ.
[5] Mr Paul faces nine charges contained in charging documents laid under the Criminal Procedure Act 2011. Six of those charges relate to a single incident in Christchurch on 24 October 2013 and are: being the person in charge of a motor vehicle, failed to surrender the keys to that motor vehicle; failing to provide particulars; refusing to accompany; refusing to permit a blood specimen to be taken; assaulting a Constable in the execution of their duty; and resisting a Constable acting in the execution of their duty.
[6] A summary of facts relating to that offending is on the court file. A further charge of failing to answer bail in respect of the six previously listed charges was also laid following a failure to appear on a number of occasions in respect of the six October 2013 charges.
[7] Mr Paul also faces two charges relating to an incident in Auckland in September 2015, those charges being forcible entry and common assault. A summary of facts relating to that offending is also on the court file.
[8] Those charges were allocated a date of first call in the Hamilton District Court on 17 May 2016 and at that time, the charges from Christchurch were also before the court. The Community Magistrate presiding remanded Mr Paul for a further appearance on 18 May 2016. That remand was in custody. A copy of the
warrant to detain, issued in accordance with the Criminal Procedure Rules 2012 and the Criminal Procedure Act 2011, is on the court file.
[9] Mr Paul appeared before Judge Connell on 18 May 2016 on each charge. On the Auckland charges, he was further remanded in custody for a case review hearing later today, 29 June 2016. The Christchurch charges were further remanded for hearing on 25 August 2016. Each call is in the Hamilton District Court. Not guilty pleas were recorded. Some of the charging documents were endorsed by Judge Connell to the effect that Mr Paul challenged the jurisdiction of the court to deal with him on those criminal charges.
[10] A copy of the warrant issued by Judge Connell to effect remand in custody of Mr Paul until the specified date is on the court file, along with copies of each of the informations and the associated record.
[11] I have read all of the charging and other documents that have been produced in this matter. The charging documents filed comply with the provisions of the Criminal Procedure Act 2011. Therefore Mr Paul was lawfully required to appear in both the Christchurch District Court and the Hamilton District Court on the dates specified in the charging documents. The fact that he was aware of that requirement is evidenced by the fact that Mr Paul initially appeared in Christchurch before absconding.
[12] On 18 May 2016, a Judge of competent jurisdiction, namely Judge Connell, exercised a power given to him on charges with a maximum penalty of imprisonment to remand Mr Paul in custody to the next date of hearing. The warrant to detain Mr Paul in accordance with that ruling also complies with the requirements of the Criminal Procedure Act 2011.
[13] The Superintendent of the prison where Mr Paul is currently detained is accordingly required to keep him in custody to comply with the lawful direction of the court.
[14] Section 14 of the Habeas Corpus Act 2001 provides as follows:
14 Determination of applications
(1) If the defendant fails to establish that the detention of the detained person is lawful, the High Court must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention.
(1A) Despite subsection (1), the High Court may refuse an application for the issue of the writ, without requiring the defendant to establish that the detention of the detained person is lawful, if the court is satisfied that—
(a) section 15(1) applies; or
(b) an application for the issue of a writ of habeas corpus is not the appropriate procedure for considering the allegations made by the applicant.
(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—
(a) a conviction of an offence by a court of competent jurisdiction, the Court Martial of New Zealand established under section 8 of the Court Martial Act 2007, or a disciplinary officer acting under Part 5 of the Armed Forces Discipline Act 1971; or
(b) a ruling as to bail by a court of competent jurisdiction.
(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.
(4) All matters relating to the costs of and incidental to an application are in the discretion of the court and the court may refuse costs to a successful party or order a successful party to pay costs to an unsuccessful party.
(5) A writ of habeas corpus may be in the form set out in the Schedule.
[15] In particular, s 14(2)(b) provides that I am not entitled to call into question a ruling as to bail by a court of competent jurisdiction. The documentary record maintained by the Ministry of Justice establishes that the detention is justified in accordance with the provisions of the Criminal Procedure Act 2011 and the Bail Act
2000. I am not entitled to go behind the decision of Judge Connell in regard to bail, that decision having been made by him on 18 May 2016 and it is that decision to remand in custody which has given rise to the current status of Mr Paul.
[16] I note Mr Paul’s second point regarding the wrong name being entered on several of the charges. There is no dispute that the correct name is on the other charges. One valid remand is sufficient. Further, it is not disputed that Mr Paul has
been served with each of the charging documents. The accuracy of the name on the charging document can be determined at the hearing and it can be amended at that point. The incorrect names on two of the charges would therefore not affect the validity of Mr Paul’s detention.
[17] I note, for the defendant’s future information, Mr Paul’s advice to me that the Police were instructed by him to wipe the name “Pouraa” some years ago. He advised me he goes by the surname “Paul”.
[18] I find that Mr Paul is subject to the laws of New Zealand and accordingly liable to detention in this matter. There is no material before the court which would suggest that the detention of Mr Paul is anything other than lawful.
[19] I therefore refuse the application for issue of a Writ of Habeas Corpus.
[20] Mr Paul needs to pursue any remedies that he seeks elsewhere. He heard the Crown say today there are possibilities, for example, of a fresh application for bail based on change of circumstances or to appeal the decision made by Judge Connell.
[21] I urge Mr Paul to take good advice on how to best work within the legal system.
--------------------------------------------------- Hinton J
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