Watene v Police

[2017] NZHC 3252

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2017-441-112 [2017] NZHC 3252

UNDER	the Habeas Corpus Act 2001
IN THE MATTER	of an application for a writ of habeas corpus
BETWEEN	NORIMA PERA LEVI WATENE Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	19 December 2017 (by teleconference)
Appearances:	Applicant in Person L Mitai, McKenzie Friend K Laurenson for Respondent
Judgment:	19 December 2017

JUDGMENT OF THOMAS J

[1]      An unsigned document purporting to be an application for a writ of habeas corpus has been placed before me.   The applicant is named as Norima Pera Levi Watene but he has not signed the application.  The document is filed by Lila Mitai, who describes herself as a lay assistant and customary practitioner.

[2]      The document is deficient on its face in that whether Mr Watene is in fact detained and on what purported basis is not clear.  There are a number of additional deficiencies in the application and in the ordinary course, I would direct the registry to reject the application.  However, the application is filed on the last working day

prior to the Christmas Court vacation, and to avoid this matter being brought before

WATENE v NEW ZEALAND POLICE [2017] NZHC 3252 [19 December 2017]

the Court again during the Christmas break, I convened a hearing and dealt with the purported application today.

[3]      It  transpires  that  Mr Watene is  currently in  custody in  the  Hawkes  Bay Regional Prison,1 detained on charges of common assault (domestic), wilful damage and threatening to kill. The warrant of detention was signed by a District Court Judge on 7 December 2017 and remanded Mr Watene in custody until 14 February 2018.

[4]      From the papers filed and prepared by Ms Mitai, it appears that Mr Watene, while serving a sentence of home detention, then allegedly committed the three other offences on 30 July 2017.   Ms Mitai confirmed that was the  position and that

Mr Watene has been in custody since then.

The purported application

[5]      The grounds on which orders are sought are:

1.        The   New   Zealand   Company   Parliament;   have   no   codified

Constitution. …

2.‘Custom’ and ‘usage’ is protected in Law and Statute via the principles of the Treaty of Waitangi.

see ‘Preamble; Te Ture Whenua Maori Maori Land Act 1993’ and [the

New Zealand Constitution Act 1852 (UK) 15 & 16 Vict c 72, s 71.]

3.“Paa Kooti” is a culturally appropriate ‘Restorative Justice’ process; a custom handed down from ancestor to ancestor.   The use of this

‘Custom” legitimises it as ‘Customary Law’ cf see CRI-2016-087-

001478

4.‘Habeas  Corpus Act  revoking  18b’  to  reaffirm  the  historic  and constitutional purpose of the writ of habeas corpus as a vital means of safeguarding individual liberty …

[6]      The orders sought are:

1.“Paa Kooti” ‘Restorative Justice’ process to be upheld as a remedial alternative to all ‘charges’ …

2.A ‘Discharge with no conviction’ is recommended as a remedial action grounded there is no case to answer to.

1      The proper respondent is therefore the Chief Executive of the Department of Corrections.

Analysis

[7]      As will be apparent, the purported application faces a number of hurdles.

Jurisdictional challenge

[8]      There is no apparent challenge to the warrant under which Mr Watene is held. Rather, there appears to be some challenge to the sovereignty of Parliament and whether a culturally appropriate course has been followed.  Similar challenges have been rejected by the Court on numerous occasions and the challenge has no prospect of success.2

Criminal charges

[9]      There are two substantive problems with the application.

[10]     First, pursuant to s 14(2) of the Habeas Corpus Act 2001 (the Act),  the requirement for a judge to inquire into matters of fact and law does not entitle a judge to call into question a ruling as to bail by a court of competent jurisdiction.

[11]     Secondly, s 14(1A) of the Act allows the Court to refuse an application for the issue of the writ if the Court is satisfied an application for the issue of a writ is not the appropriate procedure for considering the allegations made by the applicant.

[12]     Both issues are relevant in this case.

[13]     Mr  Watene  has  been  remanded  in  custody  and  is  held  pursuant  to  an appropriate warrant.3   No-one was able to inform me whether Mr Watene had applied for bail and bail had been refused.  In any event, his remand custody (effectively a refusal of bail) is not a matter properly considered in an application for a writ of habeas

corpus.

2      Warren v Chief Executive of Department of Corrections [2017] NZSC 20; Wallace v R [2011] NZSC 10; Wallace v R [2012] NZSC 54; and Warren v R [2016] NZSC 156.

3      There is a difference between the spelling of Mr Watene’s Christian name in the application as against the warrant.  If the spelling on the warrant is incorrect, pursuant to s 379 of the Criminal Procedure Act 2011, the warrant is not to be held invalid by reason of this defect unless the Court is satisfied there has been a miscarriage of justice.

[14]     Ms Mitai explained that the reason for the application was to seek Mr Watene’s discharge in respect of the new charges on the basis of the affidavits filed with the application.  There are two affidavits from whom I understand to be Mr Watene’s parents in which both say they do not want the charges in respect of the events on the evening of 30 July 2017 to continue.  There is also a document which appears to be a record of a restorative justice type meeting which records Mr Watene’s whanau’s wish to forgive him and assist in his rehabilitation.  Also lodged with the Court is a letter from a prospective employer stating she wishes to offer Mr Watene some work upon his release from custody.

[15]     While these matters might be relevant to the prosecutorial decision as to whether to proceed with the charges and/or a bail application on the basis of a change of circumstances, and/or sentencing should Mr Watene be found guilty of the charges, they are not relevant to an application for a writ of habeas corpus.

[16]     The applicant seeks orders for restorative justice and a discharge without conviction.   Any issues as to Mr Watene’s conviction or sentence are matters appropriately addressed in the District Court where the charges have been laid.  An application for a writ of habeas corpus is not the appropriate procedure for considering the matters raised on Mr Watene’s behalf.

[17]   The defendant has established that Mr Watene’s detention is lawful. Accordingly, I dismiss the application.

Thomas J