Underhill v Commissioner of the New Zealand Police

[2023] NZHC 3247

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2023-412-000118

[2023] NZHC 3247

IN THE MATTER

of an application for a Writ of Habeas Corpus

BETWEEN

KANE JOSEPH UNDERHILL

Applicant

AND

THE COMMISSIONER OF THE NEW ZEALAND POLICE

Respondent

Hearing:	On the papers
Judgment:	16 November 2023

JUDGMENT OF EATON J

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

UNDERHILL v THE COMMISSIONER OF THE NEW ZEALAND POLICE [2023] NZHC 3247 [16
November 2023]

[1]        By application filed at 3.02 pm on 14 November 2023 Kane Joseph Underhill applies for a writ of habeas corpus.

[2]The application records:

This document notifies you that,-

1]          The Applicant, Kane Joseph Underhill, will on the date to be determined in November 2023, apply to the Court for an order for a Writ of Habeas Corpus and this application will be filed by our Te Wakaminenga Administration, 2023.

2]The grounds on which the order is sought is as follows;

I/We, Kane Joseph Underhill believe that I was being detained unlawfully by the Dunedin Central Police on the 13th and 14th of November 2023. On Monday 13 November a neighbour may have rung the Dunedin Police about a woman yelling or screaming. The Police came into the house, I had been assaulted by the woman then the Police ordered me to leave for three days. I pay the rent and I felt the Police officers were racist towards me and this whole thing turned into a fiasco on the Six o’clock News in the centre of George Street, Dunedin City surrounded by Police. This is blatant racism of white supremist in Dunedin against me and the detention is unlawfully and racially motivated by giggling cowardly police officers.

3]The principle of law on which we the Applicant rely is as follows;

The “Great Writ” of habeas corpus is a fundamental right in the Constitutional arrangements of New Zealand law, that is supposed to protect me, - Kane Joseph Underhill ko Ngati Rangi me Te Popoto ki Hokianga against unlawful and indefinite imprisonment. Translated from Latin it means “show me the body.” Habeas corpus has historically been an important instrument to safeguard individual freedom against arbitrary executive power.

[3]        The application suggests Mr Underhill was detained by the police on 13 and 14 November 2023. It does not speak to his current status. It does not refer to whether as a result of the incident he described he is facing criminal charges and, if so, what charges.

[4]        The application was referred to me as duty Judge. I asked the registrar to inquire of the person recorded as having filed the application1, and of Crown Law as to Mr Underhill’s current status and, if he is facing charges, of any warrant relevant to his custodial status.

1      Waynne Underhill, the applicant’s father

[5]        Mr Smith, on behalf of the respondent has filed a memorandum this morning recording that Mr Underhill was served with a Police Safety Order at about 8.30 am on 13 November and then arrested at 12.29 pm for breaching that order. He was in custody overnight. He appeared in the Dunedin District Court on 14 November and was then served with a further Police Safety order. Following service of that order, Mr Smith confirms Mr Underhill was released from Police custody. Mr Underhill’s father has confirmed by email that his son is no longer in custody having been released at approximately 2 pm on 14 November.

[6]        The purpose of a writ of habeas corpus is to challenge the legality of a person’s detention.2 It is the fact of detention that triggers such an application. A writ must be founded on an unlawful detention, considered as at the date of the hearing of the application. “Detention” is defined in s 3 of the Act as including “every form of restraint of liberty of the person”. Mr Underhill does not allege and is not in fact, presently detained.

[7]        An application for a writ of habeas corpus is not the appropriate procedure when the applicant is not detained. There being no detention, the application is dismissed.

...................................................

Eaton J

Solicitors:

RPB Law, Dunedin

Copy to:
K J Underhill

2      Habeas Corpus Act 2001, s 6.