Liddington v Attorney-General

[2020] NZHC 3528

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2020-441-94

[2020] NZHC 3528

BETWEEN

CAIN LIDDINGTON

Applicant

AND

ATTORNEY-GENERAL

Respondent

On the papers:

Counsel:

C Liddington in person

No appearance for Respondent

Judgment:

23 December 2020

JUDGMENT OF CHURCHMAN J

Introduction

[1]    Mr Liddington (the applicant) has filed a document which the Court will treat as if it were an application for a writ of habeas corpus. The document is confusing, in places to the point of incomprehensibility. The grounds upon which the appellant seeks this application are unclear, although the applicant makes the following request, addressed to the Governor-General, Commissioner of Police, the Chief Justice of New Zealand and the Attorney General:

We command you immediately to discharge that release from custody and detention of -: THE -: MAURI=LIVE=LIFE= SOVEREIGN-MAN =-:cain:

of THE Tupuna = :liddington: who is known as PRN; 80345442. NAPIER, HIGH COURT.

Relevant law and analysis

[2]    The starting point is the Habeas Corpus Act 2001 (the Act) is s 5, which sets out the purpose of the Act, one of which is to “make better provision for restoring the

LIDDINGTON v ATTORNEY-GENERAL [2020] NZHC 3528 [23 December 2020]

liberty of persons unlawfully detained”.1 A writ of habeas corpus must therefore be founded on an unlawful detention.2 Any application should explain where the applicant is detained and what is alleged to be unlawful about that detention. That has not been done in this case.

[3]Determinations of applications are outlined in s 14:

1. Determination of applications

   (1)If the defendant fails to establish that the detention of the detained person is lawful, the High Court must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention.

   (1A) Despite subsection (1), the High Court may refuse an application for the issue of the writ, without requiring the defendant to establish that the detention of the detained person is lawful, if the court is satisfied that—

(a)section 15(1) applies; or

(b)an application for the issue of a writ of habeas corpus is not the appropriate procedure for considering the allegations made by the applicant.

(2)A Judge dealing with an application must enquire into the matters of fact and law claimed to justify the detention and is not confined in that enquiry to the correction of jurisdictional errors; but this subsection does not entitle a Judge to call into question—

(a)a conviction of an offence by a court of competent jurisdiction, the Court Martial of New Zealand established under section 8 of the Court Martial Act 2007, or a disciplinary officer acting under Part 5 of the Armed Forces Discipline Act 1971; or

(b)a ruling as to bail by a court of competent jurisdiction.

(3)Subject to section 13(2), a Judge must determine an application by—

(a)refusing the application for the issue of the writ; or

(b)issuing the writ ordering the release from detention of the detained person.

(4)All matters relating to the costs of and incidental to an application are in the discretion of the court and the court may refuse costs to a successful party or order a successful party to pay costs to an unsuccessful party.

1      Habeas Corpus Act 2001, s 5.

2      Habeas Corpus Act 2001, s 6.

(5)A writ of habeas corpus may be in the form set out in the Schedule.

[4]    Under s 14(1), the onus rests on the detaining party to demonstrate that the detention is lawful.

[5]    However, the case of Bennett v Superintendent, Rimutaka Prison is authority for the proposition that the warrant of detention has the effect of reversing this onus, citing:3

In practice, once a prison superintendent or other official named as respondent produces a committal warrant or other authorisation…it would then be necessary for an applicant for habeas corpus to demonstrate that the documentation did not in fact provide a lawful justification in the particular circumstances.

[6]    Next, the Judge must inquire into the matters of fact and law claimed to justify the detention but is not entitled to call into question:4

(a)a conviction of an offence by a court of competent jurisdiction; or

(b)a ruling as to bail by a court of competent jurisdiction.

[7]    Under s 7 of the Act, an application for a writ of habeas corpus must be made to the High Court by originating application in the manner provided by the High Court Rules 2016 (HCR).5 The relevant rules concerning originating applications are set out in part 19 of the High Court Rules 2016.

[8]The application filed by the applicant does not comply with HCR 19.8 and

19.9. Specifically, the application does not contain a memorandum stating the matters set out in HCR 5.44 as required under HCR 19.8 (and is not in the one of the paragraphs of form G10), and the heading of the document is also not presented for filing in form G1, as required under HCR 19.9.

[9]    More fundamentally, on the information available to the Court, it does not appear that the applicant is currently detained but seems to be on bail, awaiting

3      Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616 at [70].

4      Habeas Corpus Act 2001, s 14(2).

5      Section 7(1).

sentencing. If an applicant is not currently being detained, there can be no unlawful detention giving grounds for the issue of a writ of habeas corpus.

[10]   If the applicant were detained as a result of a bail decision, as indicated in     s 14(2) of the Act, a Judge is not entitled to call into question bail orders when determining an application.

[11]   The application is therefore refused on the basis that the Court has no jurisdiction to grant habeas corpus unless there is an unlawful detention. If the applicant wishes to pursue such an application in the future, he will need to file it in the proper form and provide the necessary information as to the nature and whereabouts of his detention and the basis of any alleged unlawfulness.

Churchman J

cc:        C Liddington