IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2017-404-2679 [2017] NZHC 2766
UNDER the Habeas Corpus Act 2001 IN THE MATTER OF
an application for a writ of habeas corpus
BETWEEN
LUKE ATTARD Applicant
AND
HIGH COURT AUCKLAND Respondent
Hearing: On the papers Judgment:
10 November 2017
JUDGMENT OF DUFFY J
[1] The applicant, Luke Attard, applies for a writ of Habeas Corpus.
[2] Section 6 of the Habeas Corpus Act provides:
6.Application for writ of habeas corpus to challenge legality of detention
An application to challenge the legality of a person’s detention may be made by an application for a writ of habeas corpus.
[3] In Schuchardt v Commissioner of Police HC Hamilton CIV-2011-419-1386,
30 September 2011, the applicant applied for a writ of habeas corpus seeking release from restrictive bail conditions. The application therefore arose in a different context
but in dismissing the application Keane J commented:
ATTARD v HIGH COURT AUCKLAND Habeas Corpus [2017] NZHC 2766 [10 November 2017]
[9] A challenge to the legality of a person's detention may be made by application for writ of habeas corpus, which is a swift and summary remedy. But for a writ to issue there must be an unlawful detention, a detention without legal justification. And there must fi rst be a det ent ion . It is only if there is that a writ may issue unless the restraining entity is able to prove that it is lawful.
[10] Detention is very widely defined to include “every form of restraint of liberty of the person”. But this typically connotes imprisonment or actual detention in some analogous form, say arising say in an immigration or deportation context, or on account of a person's mental health. It does not naturally connote a grant of bail on terms limiting what a person may do.
(emphasis added)
[4] In the present case Mr Attard is not presently detained, at most he will be arrested. He makes a pre-emptive application to challenge the lawfulness of the detention that will follow his arrest. Such application is not available to him under the Habeas Corpus Act. It follows that I have no jurisdiction to deal with his application under the Habeas Corpus Act, nor is there other legal authority available to enable me to consider the application on its merits. Accordingly it is dismissed
Result
[5] The application is dismissed.
Duffy J
- AGLC
- Attard v High Court Auckland [2017] NZHC 2766
- Case
- [2017] NZHC 2766
- Decision Date
CaseChat Overview and Summary
The court found that a writ of habeas corpus could only be issued if there was an unlawful detention, and the remedy was not available for a pre-emptive challenge of detention that had not yet occurred. The court relied on the definition of detention under the Habeas Corpus Act, which typically referred to imprisonment or analogous forms of restraint, rather than the grant of bail with conditions. Since the applicant was not currently detained, the court held it had no jurisdiction to consider the application on its merits under the Habeas Corpus Act.
As a result, the application for a writ of habeas corpus was dismissed. The court did not have jurisdiction to hear the applicant's pre-emptive challenge to the potential detention that had not yet occurred. The remedy of habeas corpus was not available to challenge bail conditions in anticipation of arrest. The court found there was no other legal authority to consider the application, and accordingly it was dismissed.
Orders
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Background
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Evidence
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