IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE	
CIV-2022-470-5
[2022] NZHC 33	

IN THE MATTER	of Te Tiriti o Waitangi 1840 Common law of England	
BETWEEN	TIO O TE WHĀNAU FAULKNER
Applicant	
AND	DISTRICT COURT AT TAURANGA
Respondent	

Hearing:	21 January 2022	
Appearances (via VML):	Applicant in person with Georgina o te whānau Turanga in
support
A Powell for the Chief Executive of the Department of Corrections	
Judgment:	24 January 2022	

JUDGMENT OF GAULT J
(Application for writ of habeas corpus)

This judgment was delivered by me on 24 January 2022 at 10:00 am pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Parties / Counsel:
The Applicant, C/o Springhill Prison Ms Georgina o te whānau Turanga Mr A Powell, Crown Law, Wellington

FAULKNER v DISTRICT COURT AT TAURANGA [2022] NZHC 33 [24 January 2022]

[1]	An application for habeas corpus in respect of Mr Faulkner, filed by Georgina o te whānau Turanga, was referred to me as Duty Judge on the evening of Wednesday 19 January 2022.

[2]	I convened a hearing by VMR on Thursday morning, but Ms Turanga did not receive notice in time. Nor was Mr Faulkner before the Court.

[3]	Mr Powell appeared for the Chief Executive of the Department of Corrections and advised that Mr Faulkner was being detained in Police custody at the Rotorua Hub (the Rotorua Police Custody Centre) following remand in custody by the Tauranga District Court. He understood that Mr Faulkner had failed to appear in the District Court at Tauranga on Wednesday morning, a warrant to arrest had been issued, and Mr Faulkner then appeared at 1:00 pm. He was remanded in custody pending sentencing on charges under the Resource Management Act 1991 (RMA) on which he had been convicted. There was a warrant to detain but it was not clear at that stage whether it had been issued. I directed an update be provided once further information was available.

[4]	Mr Powell filed a memorandum later on Thursday advising that there appeared to be a warrant authorising Mr Faulkner’s detention issued by a District Court Judge authorising Police to deliver Mr Faulkner to Waikeria Prison and the Prison Manager to detain him until a further hearing in the Tauranga District Court on Wednesday, 2 February 2022 at 11:30 am.

[5]	Also on Thursday, Mr Faulkner was transported from the Rotorua Hub to Spring Hill Prison.

[6]	I issued a further minute on Thursday indicating it appeared that the warrant authorises Mr Faulkner’s current detention. However, I convened a further VMR hearing at 3:00 pm on Friday 21 January 2022 to give Ms Turanga and Mr Faulkner an opportunity to address the position.

Habeas corpus – legal principles

[7]	An application for a writ of habeas corpus is an application to challenge the legality of a person’s detention.

[8]	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.1 If granted, the High Court’s writ of habeas corpus commands the defendant, or other person in whose custody the detained person is alleged to be detained, immediately to discharge and release from custody the named person.

[9]	The focus of this Court’s enquiry on an application for habeas corpus is whether the person is being unlawfully detained. The onus is on the detaining person to justify the detention, but the existence of a warrant of detention has an important effect. On an application for habeas corpus, the Judge is not entitled to call into question a conviction or a ruling as to bail by a Court of competent jurisdiction.2         If they are to be questioned, the appropriate recourse is an appeal against the conviction or refusal to grant bail.

This application

[10]	In essence, two grounds are raised in relation to Mr Faulkner’s detention. First, Ms Turanga submitted the warrant to detain refers to Waikeria Prison and does not authorise detention at Spring Hill Prison.

[11]	However, as Mr Powell submitted, the effect of s 37(2) of the Corrections Act 2004 is that a warrant to detain a person “in any specified prison is sufficient authority for the reception and detention of that person in any other prison to which he or she might have been committed”.

[12]	Secondly, Ms Turanga and Mr Faulkner seek to challenge decisions of the District Court. The District Court proceeding relates to charges under the RMA.

1	Habeas Corpus Act 2001, s 14(1).
2	Section 14(2).

Ms Turanga submitted the Court had not recognised tikanga or Te Tiriti o Waitangi. Her memoranda indicated the District Court’s jurisdiction over Mr Faulkner is disputed. Mr Faulkner explained that he had raised the issue of original right whenua in the District Court and been told the District Court could not address that challenge. Following his conviction, he advised the District Court Judge that he would appeal and sought a stay of proceedings (sentencing) pending High Court proceedings.     Mr Faulkner then attempted to file certain documents in the High Court, but the Registrar of the High Court declined to accept them for filing on the basis they did not comply with the High Court Rules.

[13]	A sentencing hearing was scheduled for 19 January 2022. Mr Faulkner submitted he applied for an adjournment, but the Judge was not given the correct document. When Mr Faulkner realised on 19 January 2022 that the matter had already been called, he arranged to appear. He sought an adjournment of sentencing pending his High Court application. The Judge refused such an adjournment and remanded him in custody pending sentencing.3 Mr Faulkner submitted that the prosecutor and the Judge appear to consider he is being obstructive, including because he has yet to participate in an interview with a probation officer for his pre-sentence report, but he merely seeks to have his challenge addressed before sentencing.

[14]	It appears that Mr Faulkner, who has been self-represented in the District Court proceeding, has misunderstood the process for challenging the decisions of the District Court, including confusion between criminal appeals and civil proceedings in the High Court. In essence, Mr Faulkner is seeking to challenge his convictions and the Court’s refusal to grant bail. In relation to the convictions, Mr Faulkner can appeal as the Judge noted. Sentencing is not normally stayed pending appeal against conviction but, as the Judge also noted, once an appeal has been filed Mr Faulkner could apply to adjourn his sentencing. Most relevantly, given that on 19 January 2022 Mr Faulkner was declined bail and remanded in custody pending sentencing, Mr Faulkner can file an urgent appeal against the refusal to grant bail, as Mr Powell noted.

3	The Judge’s notes in the record of appearances notes include that a custodial sentence is a realistic possibility.

[15]	However, as indicated, on an application for habeas corpus, the Judge is not entitled to call into question a conviction or a ruling as to bail by a Court of competent jurisdiction.4

[16]	Having reviewed the  signed District Court warrant to detain Mr  Faulkner,   it clearly authorises his detention. The detention is therefore lawful and the writ of habeas corpus should not issue.

Result

[17]	The application for habeas corpus is dismissed.

Gault J

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