Soroka

[2019] NZHC 2618

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2179

[2019] NZHC 2618

UNDER

Habeas Corpus Act 2001

RE:

An application by

GLENN MICHAEL SOROKA

Applicant

On the papers:	At Auckland
Judgment:	16 October 2019

JUDGMENT OF POWELL J

This judgment was delivered by me on 16 October 2019 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Copy to:         G M Soroka

Superintendent Jill Rogers, District Commander, Manukau City

Re: Application by Soroka [2019] NZHC [2618] [15 October 2019]

[1]The applicant, Glenn Soroka, has applied for a writ of Habeas Corpus.

[2]        The application has been made as a result of Mr Soroka having been issued a Police Safety Order pursuant to s 28 of the Family Violence Act 2018.

[3]        A fundamental problem is immediately apparent with Mr Soroka’s application. That is, while s 3 of the Habeas Corpus Act 2001 defines detention as including “every form of restraint of liberty of the person” and Mr Soroka contends that his liberty has been restrained in various ways as a result of the order having been issued, it is quite clear that habeas corpus in New Zealand is firmly founded upon unlawful detention rather than the type of loss of liberty alleged by Mr Soroka.1 In particular it is clear “it is the detention or imprisonment … which must be impugned as lacking legal justification”.2 A Police Safety Order is not concerned with the actual detention or imprisonment of a person. Quite simply Mr Soroka is not and has not been in detention for the purposes of the Habeas Corpus Act. As a result, Mr Soroka’s application must fail.

[4]        More broadly, a Police Safety Order is designed to be a cooling-off measure allowing Police to take immediate action to protect people at risk of family harm and can be in force for a period not exceeding 10 days,3 in Mr Soroka’s case, a period of five days. That is not designed to be challenged is evident by the terms of s 55 of the Family Violence Act 2018 which protects “the Crown and constable” from proceedings in carrying out the provisions of the Act specific to Police Safety Orders, provided they have acted in good faith and with reasonable care.

[5]The application is dismissed.

Powell J

1      Bennett v Superintendent of Rimutaka Prison [2001] 3 NZLR 803, [2001] NZAR 55 at [31].

2      Police v Travis [1989] 2 NZLR 122 at 125 and Bennett, above n 1, at [30].

3      Family Violence Act 2018, s 26(c).