Schuchardt v Commissioner of New Zealand Police HC Hamilton CIV 2011-419-1386

[2011] NZHC 2070

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV 2011-419-1386

BETWEEN  GORDON CREGIER SCHUCHARDT Plaintiff

ANDCOMMISSIONER OF NEW ZEALAND POLICE AND MINISTRY OF TRANSPORT

Defendants

CIV 2011-419-1387

AND BETWEEN            GORDON CREGIER SCHUCHARDT Plaintiff

ANDHAMILTON DISTRICT COURT AND MINISTRY OF JUSTICE

Defendants

Hearing:         30 September 2011

Appearances: Plaintiff in person

L Dunn for Defendants

Judgment:      30 September 2011

JUDGMENT OF KEANE J

Solicitors:

Crown Solicitor, Hamilton.

Copy to:

Gordon; Israel, P.O. Box 48, Thames.

GORDON CREGIER SCHUCHARDT V COMMISSIONER OF NEW ZEALAND POLICE AND MINISTRY OF TRANSPORT HC HAM CIV 2011-419-1386 30 September 2011

[1]      On 27 September 2011 Gordon   Schuchardt applied for a writ of habeas corpus,  naming  the  Commissioner  of  Police,  the  New  Zealand  Police  and  the Ministry of Transport as defendants, seeking release from bail conditions restraining his liberty, as he says unlawfully.  He does not, in that application, refer to the grant of bail in issue.

[2]      He seeks also wider relief: an injunction to bar the New Zealand Police from a variety of actions which he says impinge on his liberty; and full details from the Ministry of Transport  of  any securities  or  equitable  interests  in  respect  of  cars removed from him; and $100,000 damages and $1M exemplary damages.

[3]      In his second application made on the same day, Mr Schuchardt again applies for a writ of habeas corpus, this time naming the Registrar of the District Court, Hamilton, and the Ministry of Justice as defendants, contending that he is presently restrained, as he says unlawfully, by a warrant of arrest that he anticipates will soon be executed.  Once again, he does not identify the warrant to which he refers.

[4]      In that second application also, he seeks wider but more modest relief than that he has sought in his first application.  He seeks an order requiring the defendants to disclose how he might respond lawfully to fines he is said to owe in order to be released from any liability for non-payment and from any for disobedience or contempt.

Context

[5]      As Mr Schuchardt has accepted today, his first application concerns a grant of bail to him on 9 September 2011 in respect of a charge he presently faces in the District Court, Thames, of intentionally obstructing a constable on 19 April 2011. On 9 September, he accepts, Judge Ruth withdrew a warrant issued two days before after he had failed to appear; a warrant that the Judge had directed should lie in Court.

[6]      The Judge, as Mr Schuchardt also accepts, then granted him bail on terms, and it is that grant of which he complains.   It requires him to live at his home

address, and prohibits him from communicating with the complainant, or any Crown witness or anyone at a named service station, and from going within a stated distance of the service station, and from driving.

[7]      Mr Price, a Deputy Registrar of the District Court, Hamilton, responsible for Thames, has confirmed that he issued the warrant of arrest for fines matters, the subject  of  a  second  application,  when  Mr  Schuchardt  failed  to  appear  on  7

September 2011.  It was never executed by the police.  Mr Price has since withdrawn it.

[8]      That administrative decision, as Mr Schuchardt accepts, renders his related application redundant, and leaves only the issue arising on his first application, whether a grant of bail can constitute an unlawful detention. The defendants submit that it cannot.  But if it does constitute a detention, they say, it was lawful. They rely on the Judge's decision.

Detention and lawfulness

[9]      A  challenge  to  the  legality  of  a  person's  detention  may  be  made  by application for writ of habeas corpus, which is a swift and summary remedy.[1] But for a writ to issue there must be an unlawful detention, a detention without legal justification.[2] And there must first be a detention. It is only if there is that a writ may issue unless the restraining entity is able to prove that it is lawful.

[1] Habeas Corpus Act 2001, s 6

[2] Police v Travis [1989] 2 NZLR 122, 125; van de Ent v Sewell [2003] 3 NZLR 125; Bennett v

Superintendent, Rimutaka Prison [2001] 3 NZLR 803

[10]     Detention is very widely defined to include 'every form of restraint of liberty of the person'.[3]   But this typically connotes imprisonment or actual detention in some analogous form, say arising say in an immigration or deportation context, or on account of a person's mental health.  It does not naturally connote a grant of bail on

terms limiting what a person may do.

[3] Habeas Corpus Act 2001, s 3.

[11]     Consistent with that conclusion is that, while to decide an application for a writ of habeas corpus a judge must inquire into the facts and law claimed to justify detention, he or she is not entitled to call into question 'a ruling as to bail by a court of competent jurisdiction'.[4]    That may be to prevent an application for a writ being used  to  obtain  a  second  appeal  following  an  unsuccessful  bail  application  and appeal.[5]     But, at the very least, it is clear that a grant of bail on usual terms is unlikely to constitute a detention.

[4] Section 14(2)(b).

[5] Harris v North Shore District Prison Board [2002] NZAR 271 (HC).

[12]     In the same way s 11 permits a judge to make an interim order releasing a detained person from detention before an application for a writ is finally determined, but prohibits a judge from doing so where a person is charged with an offence to which the Bail Act 2000 applies and the judge is of the opinion that bail would not

be granted.[6]

[6] Habeas Corpus Act 2001, s 11(2).

[13]     Even where a judge does make an interim order for release, moreover, that may be on conditions.[7]  And where a person fails to comply with those conditions he or she may be arrested.[8]   And a judge may revoke the interim order if the conditions have not been complied with, returning the person to detention.[9]   Such an interim order has to be tantamount to a grant of bail, yet does not constitute a detention.

[7] Section 11(1).

[8] Section 12(1)(b).

[9] Section 11(3)(a).

[14]     Consistent also is the decision of the Supreme Court in Crequer v Chief Executive, Department of Corrections.[10] There the Court declined leave to appeal the denial of a writ of habeas corpus in this Court, that had been upheld in the Court of Appeal, because the proposed appeal was moot.  The person to whom it related was

no longer a remand prisoner.  He had been released on bail.

Outcome

[10] Crequer v Chief Executive, Department of Corrections [2010] NZSC 48.

[15]     Mr Schuchardt's application for a writ of habeas corpus in respect of the fines warrant has to be dismissed, as he accepts, on the basis, if for no other reason, that it is redundant. His application for a writ setting aside the grant of bail must must equally be dismissed on the basis that the grant made does not constitute a detention, let alone one that is unlawful.

[16]     Mr Schuchardt's wider claims for relief cannot be advanced on an application for a writ of habeas corpus which is, as I have said, a summary remedy to respond only  to  an  unlawful  detention  as  a  matter  of  urgency.  In  dismissing  both  his

applications, I dismiss those wider claims for relief as well.

P.J. Keane J