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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Watene v Police

Details

AGLC: Watene v Police [2017] NZHC 3252
Case: [2017] NZHC 3252
Decision Date: 19 December 2017

CaseChat Overview and Summary

In the case of Watene v Police, Norima Pera Levi Watene sought a writ of habeas corpus, contending that he was unlawfully detained by the New Zealand Police. The application was filed by Ms Lila Mitai, a lay assistant and customary practitioner, as the applicant was not represented by legal counsel. The application was deficient, lacking clarity on whether Watene was indeed detained and on what basis, and was filed on the last working day before the Christmas Court vacation. Watene was in custody at Hawkes Bay Regional Prison on charges of common assault (domestic), wilful damage, and threatening to kill, with a warrant of detention signed by a District Court Judge on 7 December 2017.

The legal issues before the court included whether the application met the statutory requirements for a writ of habeas corpus and whether the court had jurisdiction to consider the allegations made by Watene. The application raised concerns about the sovereignty of Parliament and the protection of 'custom' and 'usage' under the Treaty of Waitangi. However, these challenges had been previously rejected by the Court. Furthermore, Watene's detention was lawful as he was held pursuant to a valid warrant. The application also sought a 'Paa Kooti' restorative justice process and a discharge without conviction, but these matters were not appropriate for consideration in a habeas corpus application.

The court dismissed the application, finding that Watene's detention was lawful and that the application did not meet the statutory requirements for a writ of habeas corpus. The court held that an application for a writ of habeas corpus is not the appropriate procedure for considering the allegations made by Watene, and any issues regarding his conviction or sentence should be addressed in the District Court.

Orders