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Hambly v Auckland South Correctional Facility [2024] NZHC 909 (23 April 2024)

Last Updated: 30 April 2024

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 23 April 2024 at 4 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

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HAMBLY v AUCKLAND SOUTH CORRECTIONAL FACILITY [2024] NZHC 909 [23 April 2024]

• [1] On 22 April 2024, Mr Hambly filed an application for a writ of habeas corpus. Mr Hambly says he has previously made a handwritten habeas corpus application that was declined (he says this was because it was not typed).

• [2] Mr Hambly is presently serving a six-and-a-half-year term of imprisonment at the Auckland South Corrections Facility in Wiri. Mr Hambly’s trial took place before a jury between 29 May and 12 June 2023. He was found guilty by the jury on four charges: kidnapping, injuring with intent to injure, causing grievous bodily harm, and threatening grievous bodily harm. He was later sentenced by Downs J on 7 September 2023.¹

• [3] As recorded in the sentencing notes,² Mr Hambly dismissed his lawyers on the morning of trial by placing them in a position in which they had no choice but to withdraw. He represented himself at trial, albeit with the benefit of standby counsel. Prior to the commencement of trial, Mr Hambly had a series of other experienced criminal lawyers acting for him who also withdrew.

• [4] At the sentencing hearing, Mr Hambly submitted that the prosecution had abused the processes of the Court. He alleged illegality during the history of the four charges, and on that basis submitted that it was unlawful to imprison him. He also complained about disclosure, and that he suffered hardship because of delay.

Legal principles

• [5] An application for an order under the Habeas Corpus Act 2001 allows a person to challenge the lawfulness of their detention.³ Under s 7, an application for a writ of habeas corpus must be made by originating application, but nothing in s 7(1) excludes the inherit jurisdiction of the High Court to hear and to make an order on an oral application at any time in circumstances of unusual urgency.⁴

¹ R v Hambly [2023] NZHC 2506.

² At [31]–[32].

³ Habeas Corpus Act 2001, s 6.

⁴ Section 7(2).

• [6] Under s 9, an application for a writ of habeas corpus must be given precedence over all other matters before the High Court unless a judge of that court considers the circumstances require otherwise. Section 9(3) requires the Registrar to allocate a date for the hearing of an application no later than three working days after it is filed. Notwithstanding this provision, jurisdiction exists pursuant to s 14(1A) of the Habeas Corpus Act for the Court to dismiss a habeas corpus application on the papers without holding a hearing.⁵

• [7] Section 14(1A) provides as follows:

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.

• [8] The primary issue under s 14 of the Habeas Corpus Act is whether detention of the detained person is lawful. The lawfulness of detention following the imposition of a sentence of imprisonment can be achieved by producing the warrant of commitment.⁶ I have reviewed the warrants of commitment for Mr Hambly. The statutory basis, and the warrants themselves, are in order.

• [9] Under s 14(2), a judge is not entitled to call into question a conviction of an offence by a court of competent jurisdiction. As the Court of Appeal has said, the existence of a warrant of detention has an important effect and it would be necessary, in the face of a warrant, for an applicant for habeas corpus to demonstrate that the warrant did not in fact provide lawful justification for detention in the particular circumstances.⁷

5. Grant v Minister of Justice [2021] NZHC 1270 at [9]–[10]. Cooke J accepted there may also be some circumstances where the Court could strike out an application in its inherent jurisdiction, notwithstanding that the application may not fall within s 14(1A). The Judge otherwise doubted whether there is jurisdiction to strike out an application pursuant to the High Court Rules 2016.
6. Craig v Chief Executive of the Department of Corrections [2024] NZHC 202 at [14] (application for leave to appeal declined by the Supreme Court in Craig v Chief Executive of the Department of Corrections [2024] NZSC 23).

⁷ Bennett v Superintendent, Rimutaka Prison [2001] NZCA 286; [2002] 1 NZLR 616 (CA) at [70].

• [10] Moreover, the Court of Appeal has emphasised that it would be a rare case where habeas corpus procedures would permit a court to inquire into challenges on administrative law grounds to decisions which lie upstream of apparently regular warrants.⁸ Habeas corpus procedure is only appropriate to challenge decisions properly susceptible to fair and sensible summary determination. In other words, the Court in its habeas corpus jurisdiction is not able to reopen underlying processes, such as conviction and sentencing decisions, that led to the creation of a warrant of commitment.

• [11] In Ericson v Department of Corrections, Mr Ericson appealed two decisions refusing his applications for habeas corpus, dealt with on the papers and given by way of minute. The Court of Appeal dismissed the appeal, because no proper basis for habeas corpus had been advanced:⁹

The writ is not appropriate for challenging the lawfulness of a conviction or the conditions under which an inmate sentenced to imprisonment is detained.

Unless and until Mr Ericson’s conviction is set aside, it remains valid at law and, where, as here, a sentence of imprisonment has been imposed, the warrant authorising that imprisonment remains in force. ...

Analysis

• [12] In this case, the arguments advanced by Mr Hambly in the habeas corpus application are not matters that fall within the Court’s habeas corpus jurisdiction. Mr Hambly’s arguments can only be pursued through appeal processes. Accordingly, s 14(1A)(b) applies because the application for habeas corpus is not the appropriate procedure for considering his allegations.

• [13] The overview paragraphs of the application say it is based on an argument that large amounts of disclosure have not been obtained by Mr Hambly, and this prejudiced his trial rights and his ability to pursue an appeal.

• [14] Among other things, Mr Hambly refers to an imperial Act called the “Civil and Criminal Justice Statute 1354”, alleged breaches of the “Procedures Act, Disclosure

⁸ Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA) at [49].

⁹ Ericson v Department of Corrections [2014] NZCA 118, [2014] NZAR 540 at [4]–[5].

Act, Search & Surveillance Act, Evidence Act, High Court Rules Act, Lawyers & Conveyancing Act”. He also refers to a series of Crimes Act 1961 provisions in relation to an allegation that text messages were missing from disclosure materials. He relies on the New Zealand Bill of Rights Act 1990, alleging unreasonable search and seizure and inadequate time and facilities to prepare a defence. On page 4 of his application, Mr Hambly lists a number of assertions which he is aggrieved were not included in the agreed facts given to the jury. On page 7 he refers to a list of text messages which he says is incomplete.

• [15] Mr Hambly says he is seeking release from imprisonment to gather proof for a Court of Appeal hearing. He complains of rulings made by Downs J during the trial, which he says prevented him from “entering this ‘missing data’”. He complains that his phone, seized as evidence, should have been returned much sooner than it was, and that forensic extraction must not have been done properly.

• [16] On page 8 of the application, he refers to various tranches of disclosure and says that this did not occur, or he no longer has copies. He also complains about not receiving Crown notices or being made aware of amendments or additions to the charges. On page 9, he refers to the sentencing hearing and complains that his lawyer’s written submissions on his behalf were filed before she visited him to take instructions. He also alleges that there is a chain of custody issue with the master copy of the recorded police interview that took place on 20 August 2020, because the time stamp purports to say the file was created on 24 August 2020.

• [17] All of the matters raised in the application seek to reopen underlying processes, such as conviction and sentencing decisions, that led to the creation of a warrant of commitment. These decisions are not properly susceptible to fair and sensible summary determination. The matters raised in Mr Hambly’s application fall outside the proper scope of the habeas corpus jurisdiction. The writ is not appropriate for challenging the lawfulness of his convictions.

Result

• [18] For the reasons set out above, I am satisfied that Mr Hambly is lawfully detained, and his grievances now fall to be raised in any appeal of the conviction and

sentence. A writ of habeas corpus is not the appropriate procedure for considering the allegations made by the applicant, so no proper purpose would be served by holding a hearing. Therefore, pursuant to s 14(1A)(b) of the Habeas Corpus Act, Mr Hambly’s application may be rejected on the papers without a hearing.

• [19] Accordingly, the application for habeas corpus is declined.

O’Gorman J