Simonsen v Rimutaka Prison

[2020] NZHC 1221

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-252

[2020] NZHC 1221

UNDER THE

Habeas Corpus Act 2001

BETWEEN

JACOB SIMONSEN

Applicant

AND

RIMUTAKA PRISON

Respondent

Hearing:	29 May 2020
Appearances:	Applicant in Person (AVL) Ms Lawson for Respondent
Judgment:	29 May 2020

JUDGMENT OF GRICE J

Overview1

[1]    The applicant who is called Jacob, is presently remanded in Rimutaka Prison under s 168(a) of the Criminal Procedure Act 2011 on two charges: one of threatening a person2 and one of dishonestly taking or using a document.3 Jacob was first remanded under a warrant dated 12 March 2020 and the further warrant which has been produced to the Court is dated 28 April 2020. It directs Jacob’s detention until  3 June 2020 when he is to appear via AVL in the Hamilton District Court.

1      This decision was delivered orally on 29 May 2020. The written form has been edited and footnoted before distribution.

2      Crimes Act 1961, s 307A; maximum penalty of seven years’ imprisonment.

3      Section 228; maximum penalty of seven years’ imprisonment.

JACOB SIMONSEN v RIMUTAKA PRISON [2020] NZHC 1221 [29 May 2020]

[2]    In the warrant Jacob is referred to as Jacob Peter Midi Simonsen. Today Jacob clarified the fact that he is in fact Jacob and should be referred by that name which I will do accordingly.

[3]    I also note that the warrant of 28 April 2020 incorrectly refers to the section of the Crimes Act for the charge of threatening a person as s 307 when it should be a reference to s 307A. This is clearly an error and in my view is a minor error which does not invalidate the warrant. It is clear from the face of the warrant what the charges are.

[4]    Jacob clarified today that it was not a writ of habeas corpus from this Court that he was seeking. He explained that the Crown Bench of the Court of Jacob (Court of Jacob) has given a direction to Corrections that he be released. He says today that this Court should uphold that direction to Corrections for his release. This is on the basis that this Court should uphold the rule of law.

[5]    Ms Lawson for Corrections indicated that with the clarification today of Jacob’s view of what was before this Court she was able to advise that the Chief Executive of the Department of Corrections does not accept the direction from the Court of Jacob for Jacob’s release.

[6]    As I explained to Jacob this Court’s obligation is to administer the laws of New Zealand. That does not include enforcement of the orders of the Court of Jacob. Therefore I propose dealing with this matter as an application for habeas corpus.

[7]    I note at the outset that William, who explained that he was the principal for the Estate of William Henry Turner, had been in discussions with Jacob and had sought leave to appear to assist Jacob today. I indicated that as he was not lawyer he could not as of right appear for Jacob. Nevertheless arrangements were made for him to be present by teleconference for the hearing. He did make some comments in support of Jacob’s application and assisted Jacob with reminders to repeat various matters as Jacob made his submissions.

The applicant’s claim

[8]    Jacob has filed very comprehensive documents including a detailed summary of the various events that led to his arrest and to the charges that he presently faces. He also provided an affidavit in support of an ex parte or without notice application for a writ of habeas corpus. This is intituled in the Sovereign Court Crown Bench and refers to the Habeas Corpus Act 2001 and to an application for a writ habeas corpus ad subjiciendum.

[9]    The grounds apparent in the documentation include an argument that Jacob is more than one person who was subsumed into an aggregated corporation composing individuals. By subrogation Jacob became surety for Simonsen and the dual personality meant Simonsen “being a person trust legal entity under administration leaves the man Jacob under legal disability”. This I take to mean is that Jacob does not have legal standing so cannot be incarcerated.

[10]   Next, as I have mentioned, Jacob has emphasised that he seeks that this Court uphold the rule of law and in particular enforce the writ of habeas corpus that he says has been issued by the Court of Jacob. There is also reference in the documentation to the Imperial Laws Application Act 19884 and to the case of Zaoui v Attorney- General (No 2).5 In relation to that case Jacob says that he holds classified security information relating to Mr Zaoui’s citizenship status.

[11]   As I have noted Jacob has filed a large number of documents which go into detail about his views and his opposition to the charges which he is facing. He sets out his opposition to the decision on bail as well as some general notes on the charging documents and police disclosure.

[12]   Jacob makes a number of claims about the police case against him. He alleges: parts of the summary of facts charging documents and police disclosure were misleading fabrications; perjury; conspiracy to convict; denial of due process; laying false charges; as well as making other assertions.

4      Imperial Laws Application Act 1988, sch 1, Statutes of Westminster.

5      Zaoui v Attorney General (No 2) [2005] NZSC 38.

The Respondent’s opposition

[13]   The Chief Executive of the Department of Corrections opposes the application on the following grounds:

(a)First, that Jacob was lawfully detained at Rimutaka Prison. The respondent produced two warrants for detention including the current one dated 28 April 2020 to which I have referred above. These support Jacob’s detention on remand in custody pending the hearing of two criminal charges in the District Court. The warrants were issued by the District Court under s 168A of the Criminal Procedure Act.

(b)Secondly, that a writ of habeas corpus is an inappropriate procedure to challenge the criminal charges or Jacob’s detention. Ms Lawson noted that Jacob is apparently challenging the strength of the prosecution case and the conditions of his detention in Waikeria and Rimutaka Prisons. Therefore, the Court should refuse to inquire into the application as habeas corpus is not the appropriate procedure to deal with those allegations.

(c)Thirdly, Ms Lawson outlined this morning, after it became apparent that the basis of Jacob’s application was merely for the enforcement of a writ of habeas corpus which had been issued by the Court of Jacob, that the Chief Executive did not recognise such a writ or direction from that body.

[14]   In relation to the first ground I note that the calling into question of a bail decision by a Court of competent jurisdiction, is barred by s 14(2)(b) of the Habeas Corpus Act 2001 (the Act). That appears to be apply here.

[15]   Ms Lawson also submits that, in relation to Jacob’s argument about the “dual personality” or that there exists two persons – Jacob and the Simonsen – there is case law noting that a distinction akin to the dual personality concept is not recognised by the Court. She referred to in particular the decision of Martin v Chief Executive of the

Department of Corrections6 where a dual personality argument of sorts was raised. There, Mr Martin stated “he is not a person as such although he ‘has a person’”. This was not a successful argument.

[16]   In this case the dual personality argument does not go to the validity or the lawfulness of Jacob’s detention nor does it affect the legality of the warrants.

Law

[17]   The starting point is the Habeas Corpus Act 2001. The purpose of this act is “to make better provision for restoring the liberty of persons unlawfully detained”.7 A writ of habeas corpus must therefore be founded on an unlawful detention.8

[18]   Under s 14 if the respondent, the Chief Executive of the Department of Corrections, fails to establish that the detention of Jacob is lawful then the High Court must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention.

[19]   In this case under s 14(1) the onus first rests on the detaining party, that is the Chief Executive, to demonstrate the detention is lawful. As the Court noted in Bennett v Superintendent, Rimutaka Prison9 the fact that there is a warrant of detention which has been produced has the effect of reversing this onus. The Court in that decision said:10

[70] In practice, once a prison superintendent or other official named as respondent produces a committal warrant or other authorisation … it would then be necessary for an applicant for habeas corpus to demonstrate that the documentation did not in fact provide a lawful justification in the particular circumstances.

[20]   A Judge must inquire into the matters of fact and law claimed to justify the detention but is not entitled to call into question:11

6      Martin v Chief Executive of the Department of Corrections [2016] NZHC 2811.

7      Habeas Corpus Act 2001, s 5.

8      Section 6.

9      Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616.

10 At [70].

11     Habeas Corpus Act 2001, s 14(2).

(a)a conviction of an offence by a court of competent jurisdiction; or

(b)a ruling as to bail by a court of competent jurisdiction.

[21]   In addition, a Judge may refuse an application for habeas corpus where that is not the appropriate procedure for considering allegations made by the detained person.

[22]   In my view the warrant for the detention is lawful at the date of this hearing. Therefore, there is no basis upon which an application for habeas corpus should be granted. The Chief Executive of Corrections has discharged their onus that the detention is prima facie lawful with the production of the warrant. The warrant in my view is valid under s 168(4)(a) of the Criminal Procedure Act. The error to which I have referred (in [3]) was clearly a typographical error which referred to the wrong section. This does not invalidate the warrant.

[23]   Jacob, while going into significant detail about the reasons leading to his detention outlining his defence and the problems he sees with the prosecution case has not discharged the onus to show the detention is unlawful. Many of Jacob’s supporting documents make assertions about the prosecution case against him and the strength of that case rather than issues concerning lawful detention.

[24]   Jacob will have the chance of running his defences at the time those charges are heard.

[25]   In addition, Jacob has carefully documented his time in Waikeria and Rimutaka Prisons. These include the lack of yard or shower access and allegedly time without an initial phone call. These matters do not add to the strength of the case in support of an application for habeas corpus. They cannot be addressed in these proceedings.

Conclusion

[26]   Therefore, in conclusion I must dismiss the application for habeas corpus made by Jacob. I note that Jacob indicated that this was not strictly an application for habeas corpus but rather for enforcement of a writ of habeas corpus which had been issued to the Department of Corrections from the Court of Jacob. I also indicate that this

Court does not recognise such a writ and it is not binding on the Department of Corrections.

Result

[27]Accordingly, the application is dismissed.

Grice J