Simon v Chief Executive of the Department of Corrections

[2021] NZHC 3616

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2413

[2021] NZHC 3616

UNDER

the Habeas Corpus Act 2001

IN THE MATTER

of an application for a writ of habeas corpus

BETWEEN

GREGORY ANTHONY RUA TAUROA HIMIONA SIMON

Applicant

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing:

23 December 2021 (by VMR)

Appearances:

Applicant in Person

H L Botha for Respondent

Judgment:

23 December 2021

JUDGMENT OF VENNING J

This judgment was delivered by me on 23 December 2021 at 12.15 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Meredith Connell, Auckland Copy to:  Applicant

SIMON v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZHC 3616 [23

December 2021]

[1]                   Mr Simon has applied for a discharge of charges under the Criminal Procedure Act 2011 (CPA) and a writ of habeas corpus. The applications were allocated a hearing by the Court. I convened the hearing this morning. At the outset of the hearing Mr Simon repeated the mantra which runs through his written material in support of the applications, namely that:

I reserve all of my rights not to be compelled to enter into any contracts, commercial agreements or bankruptcy. Furthermore I would not accept any pretend contracts, commercial agreements or bankruptcy knowingly or voluntarily.

[2]                   After that unpromising start to the hearing I advised Mr Simon that the Court was not able to deal with his application for a discharge under s 147 of the CPA as the charges he faces are in the District Court and any application for a discharge in relation to those charges could only be dealt with in the District Court in the first instance. I advised Mr Simon that I would deal with his application for a writ of habeas corpus.

[3]                   Mr Simon then asked the Court who I was trustee for. When I indicated that it was not his role to ask the Court questions and that he should address me on anything further he wished to say in addition to his written material, Mr Simon repeated the question, and said that he was a beneficiary of the trust. I suggested to Mr Simon that that was a nonsense and invited him again to address any further submissions on the habeas corpus matter. He declined to do so saying he would take the matter further.

[4]                   I brought the hearing to an end at that point and indicated that I would deliver my decision in writing.

[5]                   Mr Simon faces charges of sexual violation, grievous bodily harm with intent to injure, impeding breathing, threatening to kill, and assault with intent to injure. Mr Simon first appeared in the District Court at Hamilton on 5 November 2021 before Judge N D Cocurullo.1 He was remanded in custody to appear on 18 November 2021 in the District Court at Hamilton. He appeared that day before Judge S R Clark. He was remanded in custody to 10 February 2022.

1      Police v Simon [2021] NZDC 21784.

[6]                   Mr Simon’s application for discharge under s 147 of the CPA appears primarily to be based on the prosecution’s failure to comply with disclosure obligations under the Criminal Disclosure Act 2008. Whatever the merits of that complaint may be and what, if any redress Mr Simon may be entitled to, it is not a matter for this Court. As noted, the prosecution is before the District Court. Any application that he wishes to bring in the criminal proceedings are to be brought in the criminal proceedings before the District Court.

[7]                   That leaves the application for habeas corpus. Frankly I have some difficulty understanding the basis for that application. Mr Simon says:

The application is made by the applicant on behalf of the defendant … the applicant does not accept the pretend contract on behalf of the absent defendant and claims that the [defendants] case has been prejudiced and the [defendants] right have been breached and continues to accumulate a further breach as each day passes.

[8]                   Then later in the application, after repeating the mantra referred to above, Mr Simon goes on to say:

6.I appear in the flesh, where is the public gallery, this hearing is unlawful.

7.I am not the person, that the court seeks in this matter before the court. I have no association with the person, that the court seeks; and

8.I have no knowledge of the whereabouts of the person, that the court seeks in this matter before the court, other than to say that the person, that the court seeks is thought to be drowned and lost at sea.

9.I am a living being and I seek remedy.

10.I am a living being the flesh lives and the blood flows – I seek cure and maintenance.

[9]                   The issue on a habeas corpus application is whether the detention is lawful. Mr Simon, the person physically before the Court, has been charged with the above charges and has been remanded in custody on those charges.

[10]               The Crown have produced copies of the charges and of the warrants remanding Mr Simon in custody. The warrants produced before the Court have not been physically signed, however rr 2.2 3.5 and 3.7 of the Criminal Procedure Rules 2012

apply. The warrants comply with the requirements of r 3.5. The warrants were created in electronic form and have been authenticated and confirmed as authenticated on 5 and 18 November 2021 respectively.

[11]               As the respondent has produced the relevant warrants it was for Mr Simon to demonstrate the documentation did not provide lawful justification for detention.2 He has failed to do so.

[12]The application for habeas corpus is dismissed.

Addendum

[13]               I note that this is not the first time that Mr Simon has sought to raise these issues with the Court. On 19 April 2021 Moore J considered a similar application by Mr Simon in relation to previous charges.3 The Judge correctly noted the papers did not amount to a writ of habeas corpus and directed they be returned to Mr Simon. On 5 May 2021 Toogood J considered a further application in those proceedings by Mr Simon and ultimately dismissed the application.4

[14]The Registrar’s attention is drawn to s 15 of the Habeas Corpus Act 2001.

Venning J

2      Bennett v Superintendent of Rimutaka Prison [2002] 1 NZLR 616 (CA).

3      Minute of Moore J, dated 19 April 2021.

4      Minute of Toogood J, dated 5 May 2021.