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Parker v Department of Corrections [2022] NZHC 987 (10 May 2022)

Last Updated: 15 September 2022

JUDGMENT OF PALMER J

Solicitors

Crown Solicitor, Wellington

PARKER v DEPARTMENT OF CORRECTIONS [2022] NZHC 987 [10 May 2022]

The applicant

• [1] On Thursday 5 May 2022, Mr David Parker applied for a writ of habeas corpus. I convened an urgent hearing by teleconference on Friday 6 May 2022. I noted during the hearing that it was not clear to me that Mr Parker was very well prepared to argue the application and offered him the opportunity to reconvene on Monday 9 May 2022, once he had further collected his thoughts. He did not take up that opportunity.

Habeas Corpus

• [2] Section 23(1)(c) of the New Zealand Bill of Rights Act 1990 provides that everyone who is arrested or detained has the right to have the validity of arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.

• [3] The Habeas Corpus Act 2001 (the Act) reaffirms “the historic and constitutional purpose of the writ of habeas corpus as a vital means of safeguarding individual liberty”, as it states in s 5(a). It provides for restoring the liberty of those who are unlawfully detained. Section 14(1) states, if the defendant fails to establish a detention is lawful, the court “must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention”. Section 14(2) provides “a Judge dealing with an application must enquire into the matters of fact and law claimed to justify the detention”.

• [4] Once the defendant has produced a warrant or other authorisation for the applicant’s detention, it is up to the applicant to demonstrate that the documentation does not provide a lawful justification for detention in the circumstances.¹ As the Court of Appeal has stated, the inquiry envisaged by Parliament in passing the Act must be one “that although conducted in circumstances of urgency would allow an appropriately considered judicial examination that would warrant making an unappealable finding against the lawfulness of the detention”.²

¹ Bennett v Superintendent, Rimutaka Prison (No 2) [2001] NZCA 286; [2002] 1 NZLR 616 (CA) at [70].

² Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA) at [47].

Should a writ of habeas corpus issue?

• [5] It is difficult to discern exactly why Mr Parker submits that his detention is unlawful. The closest he came to that point was in submitting that his warrant of detention is illegal because not all laws are lawful and some may be unlawful under United Nations guidelines and international law.

• [6] Mr Britton, for the respondent, submits that the issue must be whether the warrant of committal is a lawful warrant. He produced the warrant. It was issued by Judge R E Neave in the Christchurch District Court on 22 April 2022 in relation to two charges of resisting Police and one charge of disorderly behaviour likely to cause violence. The warrant remands Mr Parker in custody until he is brought back to the Wellington District Court on 25 July 2022, where he faces 11 other charges. I am satisfied the warrant demonstrates that Mr Parker is lawfully detained, international law notwithstanding.

• [7] None of Mr Parker’s other objections affect the lawfulness of his detention:

(a) Mr Parker objects to aspects of the Statement of Facts that underlie charges against him. But that should be pursued at trial, if he pleads not guilty. An amicus curiae is assisting him. I ask Mr Britton to provide this judgment to the amicus.

(b) Mr Parker objects to not being granted bail and that his time in custody will likely exceed any sentence. But these issues should be pursued by an appeal of the relevant bail decision or a fresh application for bail. I understand that was made clear to Mr Parker in the District Court.

• [8] Mr Parker also objects to the hearing being by telephone, rather than in person, as he says is required under the Act. Ordinarily, he would be correct. Section 14A of the Act specifies that an application for a writ of habeas corpus is a civil proceeding for the purposes of the Courts (Remote Participation) Act 2010. Section 7 of that Act allows for the appearance of a participant in a civil proceeding by way of audio-visual link. But s 7A provides for the use of audio links for such hearings while an Epidemic Preparedness (COVID-19) Notice 2020 is in force, which is currently the case. The

Act, therefore, does not require an in person hearing to determine the present application.

• [9] I dismiss the application.

Palmer J