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Greer v Attorney-General [2023] NZHC 1627 (28 June 2023)

Last Updated: 14 September 2023

JUDGMENT OF ROBINSON J

[Application for Habeas Corpus]

This judgment was delivered by me on 28 June 2023 at 1:00 pm pursuant to Rule 11.5 of the High Court Rules

.............................................................................. Registrar/Deputy Registrar

Solicitors:

Luke Cunningham Clere, Wellington

Copy to:

Mr A I Greer

GREER v ATTORNEY GENERAL [2023] NZHC 1627 [28 June 2023]

Introduction

• [1] Mr Greer is currently serving a sentence of preventative detention with a minimum period of imprisonment of 10 years for a range of offences, the most serious of which is a charge of sexual violation by rape.¹ He was found guilty of these charges by a jury in May 2014 and is currently detained in custody pursuant to a warrant of commitment dated 26 September 2014.

• [2] Nevertheless, on 18 June 2023, Mr Greer applied, as is his right, for a writ of habeas corpus.

Mr Greer’s application

• [3] Mr Greer’s submissions in support of his application contain a number of allegations related to the conduct of his 2014 trial and his alleged inability to have properly prepared his own defence. The latter complaint seems to be based on the fact that he was denied access to computer facilities, which he says he needed given he was self-represented. However, the crux of his application for a writ of habeas corpus

– which is concerned with whether he is unlawfully detained – is essentially:

(a) that he has been “criminally detained” for over a decade following a “corrupt mock trial in 2014”;

(b) that he had previously been “criminally detained” in the lead up to his 2014 trial for around 20 weeks; and

(c) that he has been deprived of “necessary facilities”, including “proper secure computer resources” and “proper original investigation notes and record”.

• [4] Mr Greer’s application also mentions a proposed transfer to Waikeria Prison ordered “as of 16 June 2023” which Mr Greer alleges to be a “criminal transfer” on “the suggested pretence” that computer access cannot be facilitated from where he is currently detained.

¹ R v Greer [2014] NZHC 2364.

• [5] Mr Greer has applied for a writ of habeas corpus at least three times before. The Court dismissed his most recent application² (prior to this one) because it raised the same questions as those which he had raised in a previous application which was dismissed by Goddard J.³ Mr Greer made that earlier application (determined by Goddard J) shortly after he was sentenced to the term of imprisonment that he is now serving. The Judge dismissed it on the basis that he was lawfully detained and sentenced.

Legal principles

• [6] An application for a writ of habeas corpus is an application for an order requiring a detained person to be released from their detention. Such writs must be given as a matter of right where a defendant fails to establish that the detention of the detained person is lawful.⁴ While the onus is on the detaining party to justify the detention, the existence of a warrant of detention places the onus on the applicant to demonstrate that such documentation does not provide a lawful justification.⁵ For that reason, a warrant usually defeats any application. As the Court of Appeal said in Manuel v Superintendent, Hawkes Bay Regional Prison:⁶

[49] A person who detains another can fairly be expected to establish, effectively on demand, the legal justification for the detention. In cases involving imprisonment or other statutory confinements, this will involve the production of a relevant warrant or warrants or other documents which provide the basis for the detention. We accept that apparently regular warrants (or other similar documents) will not always be a decisive answer to a habeas corpus application. But it will be a rare case, we think, where the habeas corpus procedures will permit the Court to enquire, into challenges on administrative law grounds to decisions which lie upstream of apparently regular warrants. This is particularly likely to be the case where the decision maker is not the detaining party.

• [7] On an application for habeas corpus, a court is not entitled to call into question a conviction.⁷ No further applications can be made by any person either to the same or a different Judge on grounds requiring a re-examination by the Court of

² Greer v Smith [2015] NZHC 326, [2017] NZAR 141.

3. Greer v Chief Executive Department of Corrections HC Wellington, 20 October 2014 (Minute of Goddard J).

⁴ Habeas Corpus Act 2001, s 14(1).

⁵ Bennett v Superintendent Rimutaka Prison [2001] NZCA 286; [2002] 1 NZLR 616 (CA) at [70].

⁶ Manuel v Superintendent, Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA) at [49].

⁷ Habeas Corpus Act 2001, s 14(2)(a).

substantially the same questions as those considered by the Court when the earlier application was refused.⁸

Analysis

• [8] A preliminary question ahead of whether the application should be granted is whether a hearing is necessary. Ordinarily, the Registrar must allocate a date for the inter partes hearing of the application no later than three working days after the date on which the application is filed.⁹

• [9] However, there are exceptions to the general rule that such applications must first have a hearing. In Greer v Smith, (incidentally Mr Greer’s most recent application), Mander J considered that there were two situations in which hearings are unnecessary. The first is when s 14(1A) of the Habeas Corpus Act 2001 applies.¹⁰ Under s 14(1A), the Court may refuse an application without requiring the defendant to establish that the detained person’s detention is lawful if the Court is satisfied that the application is an attempt to relitigate the same questions or substantially the same questions as were raised in a previous application,¹¹ or if the application is not the appropriate procedure for consideration of the allegations made by the applicant.¹² The second is when the application is an abuse of process warranting the invocation of the Court’s inherent jurisdiction to strike the application out.¹³ The two exceptions have been accepted by this Court in subsequent decisions, albeit in Grant v Minister of Justice, Cooke J considered that it was appropriate to consider whether a hearing was necessary by reference to s 14(1A) first.¹⁴

• [10] As Mr Greer’s application falls squarely within both s 14(1A)(a) and (b), I consider it appropriate to dismiss the application without holding a hearing.

• [11] First, in respect of s 14(1A)(a), Mr Greer’s application is yet another attempt to relitigate the same question already answered in respect of his previous applications.

⁸ Section 15(1).

⁹ Section 9(3).

¹⁰ Greer v Smith, above n 2, at [13].

¹¹ Habeas Corpus Act 2001, s 14(1A)(a).

¹² Section 14(1A)(b).

¹³ Greer v Smith, above n 2, at [14].

¹⁴ Grant v Minister of Justice [2021] NZHC 1270 at [10].

That answer remains the same: he is lawfully detained pursuant to a warrant of commitment following his sentencing on 26 September 2014. Accordingly, s 15(1) plainly precludes Mr Greer from making any further application. Even so, nothing in Mr Greer’s attempts to impugn his conviction renders his current detention unlawful. In any event, Mr Greer’s conviction has been upheld by the Court of Appeal;¹⁵ and the Supreme Court dismissed his application for leave to appeal that decision.¹⁶

• [12] Second, in respect of s 14(1A)(b), Mr Greer’s application appears to also be a challenge to decisions by the Department of Corrections to restrict his use of computer facilities and transfer him to Waikeria Prison. Applying for a writ of habeas corpus is plainly not the appropriate procedure for Mr Greer to pursue such grievances. The Court has already rejected Mr Greer’s complaint about restricted computer access.¹⁷ Any complaint about his transfer from one facility to another is a matter for judicial review.¹⁸ It does not render his detention unlawful.¹⁹

• [13] Third, even if Mr Greer’s application did not fall squarely within s 14(1A), there is nothing in Mr Greer’s submissions and materials to suggest that the warrant of commitment is not a lawful justification for his detention. While the production of a warrant is not always an absolute answer to such applications, it is an absolute answer in this case given this Court cannot call into question Mr Greer’s convictions and given Mr Greer is otherwise unable to satisfy the Court that the warrant should not be a sufficient legal justification for his detention.

• [14] Finally, and for completeness, I record that I did not consider it necessary to treat Mr Greer’s application with quite the same precedence as is usually required,²⁰ given Mr Greer has made the same, or similar, applications several times before, as discussed.

¹⁵ Greer v R [2016] NZCA 630.

¹⁶ Greer v R [2017] NZSC 75.

¹⁷ Greer v Chief Executive, Department of Corrections [2019] NZHC 980.

¹⁸ Bennett v Superintendent Rimutaka Prison, above n 5, at [65].

¹⁹ At [62].

²⁰ Habeas Corpus Act 2001, s 9(1).

Result

• [15] For all these reasons, Mr Greer’s application for habeas corpus is dismissed.

Robinson J