Mitchell v Police

[2016] NZHC 2148

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

CIV-2016-485-732

[2016] NZHC 2148

UNDER

The Habeas Corpus Act 2011

BETWEEN

KERRYN MITCHELL

Applicant

AND

NEW ZEALAND POLICE

First Respondent

AND

THE COMMUNITY PROBATION SERVICE

Second Respondent

Hearing:

9 September 2016

Counsel:

Applicant in Person

P J Gunn for Respondents

Judgment:

9 September 2016

JUDGMENT OF CLARK J

[1]                   The applicant is currently detained at Arohata Prison under a Warrant to Detain issued under s 168(4) of the Criminal Procedure Act 2011 on 8 September 2016.

[2]                   The warrant directs the Manager of that prison to detain the applicant until  15 September 2016 when she is to be brought back to the Manukau District Court in respect of five charges which include breach of release conditions and contravening a protection order.

[3]                   On 8 September 2016 the applicant applied to the High Court for a writ of habeas corpus.

MITCHELL v NEW ZEALAND POLICE [2016] NZHC 2148 [9 September 2016]

[4]                   The hearing conducted by AVL began at 11:48. Ms Mitchell confirmed that the basis for her application is that she is detained unlawfully and that the unlawfulness arises from the refusal by the District Court Judge to hear her bail application. Bail was accordingly denied. Ms Mitchell has also appealed against that decision.

[5]                   Ms Mitchell addressed the Court until the audio visual link failed at 12:05. There was apparently a power failure at Arohata Prison. Attempts to restore the link were made until I returned to the courtroom at 12:52, had a brief discussion with   Mr Gunn, counsel for the respondents, and retired at 12:55.

[6]                   I advised Mr Gunn that, instead of waiting for an indeterminate time to resume the hearing — possibly not able to be organised until the following week — I considered it was desirable to issue a judgment so that Ms Mitchell had some certainty with respect to her application. Notwithstanding the hearing had been truncated I considered that for the following reasons I was in a position to issue a judgment:

(a)I had heard from Ms Mitchell, in some detail, including as to the process leading to her present incarceration; her view of the merits of the charges she faces; her fear that if she is not released pursuant to a writ of habeas corpus she is likely to face a lengthy period of imprisonment; and, of course, as to the reasons why she says her present detention is unlawful.

(b)I have the written submissions for the respondents which Mr Gunn confirmed he did not seek to address orally.

(c)Beyond the respondents’ written submissions my own review of the relevant principles during the adjournment when attempts were made to restore the audio visual link satisfied me that I was able to proceed in the way I now propose for the reasons I now set out.

[7]                   I am clear that there is no legal or factual basis for issuing the writ that      Ms Mitchell seeks.

[8]                   The Court will not issue a writ of habeas corpus where the applicant is being detained pursuant to a warrant of committal issued by a court of competent jurisdiction.1

[9]                   While the production of apparently regular warrants will not always be the complete answer to a habeas corpus application:2

… it will be a rare case … where the habeas corpus procedures will permit the Court to inquire into challenges on administrative law grounds to decisions which lie upstream of apparently regular warrants.

[10]Furthermore, as Mr Gunn submitted in his written submissions:

This application for the writ plainly challenges a decision made on a ruling as to bail by a Court of competent jurisdiction, a matter that this Court is precluded from enquiring into by s 14(2)(b) of the Habeas Corpus Act 2001.

[11]               The proper course is for Ms Mitchell to prosecute her bail appeal. I have inquired of the Wellington Registry and have been advised that the appeal is able to be heard by the Duty Judge next Wednesday 14 September 2016.

[12]The application is dismissed.

Karen Clark J

Solicitors:

Crown Law Office, Wellington

1      Misiuk v Chief Executive of the Department of Corrections HC Auckland CIV 2011-404-1346, 14 March 2011.

2      Misiuk v Superintendent of Penal Institution [2010] NZCA 480 at [30]–[31].