IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE	
CIV-2024-409-454
[2024] NZHC 2451	

UNDER	the Habeas Corpus Act 2001	
IN THE MATTER	of an application for a writ of habeas corpus	
BETWEEN	SIPILANO SOSEFO MAUPESE
Applicant	
AND	CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Respondent	

Hearing:	28 August 2024	
Appearances:	T D A Harré and S E M Payne for Applicant W J S Mohammed for Respondent	
Judgment:	29 August 2024	

JUDGMENT OF EATON J

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

MAUPESE v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2024] NZHC 2451 [29
August 2024]

Introduction

[1]	Sipilano Sosefo Maupese applies for a writ of habeas corpus. He challenges the legality of the decision of a community magistrate who remanded Mr Maupese in custody on 20 August 2024. At the conclusion of an urgent hearing on the afternoon of 28 August 2024 I dismissed the application. My reasons follow.

Background facts

[2]	It is alleged that on the afternoon of Monday 19 August 2024, Mr Maupese was driving a motor vehicle in Christchurch. He was stopped by police and is said to have provided a false name and birth date. He failed a breath screening test and evidential breath test. He elected to provide a blood sample. However, when requested to provide that sample by a health practitioner, it is alleged he refused. He was charged with being a driver who gave false information as to his own identity.1 The maximum penalty for that offence is a fine of $10,000. He was also charged with refusing to comply with a request to provide a blood sample.2 The maximum penalty for that offence is three months’ imprisonment or a $4,500 fine, together with mandatory disqualification for at least six months.

[3]	Ms Payne explains that Mr  Maupese  was  held  in  custody  overnight  on  19 August 2024 and appeared  before a community  magistrate on  the morning  of 20 August 2024. He was seen by a duty solicitor and completed an application for criminal legal aid. The police opposed his release on bail. The opposition to bail form (OTB) records under the heading “risk defendant may fail to appear” that Mr Maupese has been unlawfully residing in New Zealand since February 2022; that the police have spoken to Immigration New Zealand (INZ) who have been trying  to locate   Mr Maupese since his visa expired; and that Mr Maupese is aware of his visa status and is motivated to evade authorities. Under the heading “other relevant considerations” it is recorded that INZ have advised police they intend to serve a deportation order on Mr Maupese while he is remanded in custody and that INZ are concerned Mr Maupese will “disappear within New Zealand again” if released on bail.

1	Land Transport Act 1998, ss 52A(1)(c) and 114.
2	Land Transport Act, ss 60(1)(b), 60(2) and 72(1)(b).

Was the applicant bailable as of right?

[4]	Section 7 of the Bail Act 2000 provides:

7	Rules as to granting bail

(1)	A defendant is bailable as of right who is charged with an offence that is not punishable by imprisonment.

(2)	A defendant is bailable as of right who is charged with an offence for which the maximum punishment is less than 3 years’ imprisonment, unless the offence is one against—

(a)	section 194 of the Crimes Act 1961 (which relates to assault on a child, or by a male on a female); or

(b)	section 194A of the Crimes Act 1961 (which relates to assault on a person with whom the defendant is, or has been, in a family relationship).

(3)	[Repealed]

(4)	Despite anything in this section, a defendant who is charged with an offence punishable by imprisonment is not bailable as of right if the defendant has been previously convicted of an offence punishable by death or imprisonment.

(5)	Subject to sections 9 to 17, a defendant who is charged with an offence and is not bailable as of right must be released by a court on reasonable terms and conditions unless the court is satisfied that there is just cause for continued detention.

[5]	The maximum penalty for the charges Mr Maupese faces is three months imprisonment. He has not previously been convicted of an offence punishable by imprisonment. Mr Maupese was therefore bailable as of right. That right was not brought to the attention of the presiding community magistrate. Consequently, and no doubt influenced by the position taken by the prosecution, Mr Maupese was remanded in custody.

What then happened?

[6]	Mr Harré advises that  counsel  then  assigned  on  legal  aid  to  represent  Mr Maupese had indicated that an appeal against the refusal to grant bail would be filed.  That appeal was  not filed, and a few days later,  the case was reassigned to  Mr Harré.

[7]	Mr Maupese’s right of appeal was to the District Court. Mr Harré’s inquiries with the District Court did not instil confidence that an appeal would be promptly heard. Given that Mr Maupese had by then been in custody for over a week, Mr Harré resolved that an application for a writ of habeas corpus was the appropriate mechanism to achieve an urgent hearing and a ruling as to the legality of the applicant’s detention. That application was filed shortly after 1 pm on 27 August 2024.

[8]	I issued a minute a short time later, observing that within the OTB, INZ was recorded as intending to serve a deportation notice on Mr Maupese. There was no indication within the papers as to whether that had happened. I directed the registrar to convene an urgent inter-parties hearing.

A significant development

[9]	A hearing was held at 2.15 pm on 28 August 2024. As I entered the Court, the registrar handed me a copy of a detention information notice that had been served on Mr Maupese at Christchurch Men’s Prison at 1.58 pm on 28 August 2024. That notice records that Mr Maupese is liable to arrest and detention under s 309(1)(b) of the Immigration Act 2009 (the Act) because he is liable for deportation and that he may be detained under s 310 of the Act. It authorises the police, acting under s 313 of the Act to take Mr Maupese into custody without warrant for the purpose of deportation on the first available craft leaving New Zealand following the making of the deportation order.

[10]	Mr Mohammed responsibly concedes that Mr Maupese was bailable as of right and should have been released on bail. He submits that nonetheless it is not appropriate for a writ of habeas corpus to be issued because, as from 1.58 pm,        Mr Maupese is lawfully detained under the Act.

[11]	Having sighted the detention information notice, Mr Harré acknowledges that the application for the writ cannot succeed. He accepts the notice provides the lawful foundation for his detention. He does not, at this stage, contest the notice. He advises that Mr Maupese will appear in the Christchurch District Court on Friday and will likely then advance a bail application in relation to his detention under the Act.

Mr Harré invites the Court to make a declaration that Mr Maupese was unlawfully detained from 20 August 2024.

[12]	Mr Mohammed invites the Court to dismiss the application for the writ, to record that Mr Maupese’s detention was ultra vires and direct that the record be corrected to confirm his release on bail on the criminal charges.

Decision

[13]	The Court has been provided with evidence that provides a lawful justification for Mr Maupese’s current detention and I am satisfied he is not being unlawfully detained. In those circumstances, there are no grounds to issue a writ of habeas corpus and the application is declined.

Observations

[14]	I agree with Mr Mohammed that Mr Maupese’s remedy, having been refused bail, was to either apply to recall the bail decision or to file an appeal against that decision. Section 14(2)(b) of the Habeas Corpus Act 2001 relevantly provides:

14	Determination of applications

…

(2)   A Judge dealing with an application must enquire into the matters of fact and law claimed to justify the detention and is not confined in that enquiry to the correction of jurisdictional errors; but this subsection does not entitle a Judge to call into question—

…

(b)	a ruling as to bail by a court of competent jurisdiction.

[15]	The decision of the community magistrate to decline Mr Maupese bail was a ruling made by Court of competent jurisdiction. As the Court of Appeal observed in Leaupepe v Chief Executive of the Department of Corrections:3
The point of s 14(2)(b) is to ensure that bail decisions are dealt with under the statutory regime set out in the Bail Act 2000. Parliament has decided that it is unnecessary and undesirable to superimpose the habeas corpus jurisdiction over that regime.

3	Leaupepe v Chief Executive of the Department of Corrections [2012] NZCA 296 at [30].

[16]	I am not satisfied that the writ of habeas corpus was the appropriate process for Mr Maupese to challenge his custodial remand. As Mr Harré frankly acknowledged, he was adopting a pragmatic approach. From the bar, he says he was concerned that no steps had been taken to free Mr Maupese who was being unlawfully detained, and in light of advice received as to when an appeal to the District Court might be heard, resolved that an urgent hearing would necessarily be held on an application for a writ of habeas corpus. His assessment was correct, consistent with the obligation of urgency imposed under s 9 of the Habeas Corpus Act. I am sympathetic to the position of counsel in circumstances where there is no contest, and it should have been apparent to the police and, indeed, the community magistrate that Mr Maupese was bailable as of right. However, the writ process was not appropriate.

[17]	It is also of concern that the police opposed Mr Maupese’s release on bail. It would be highly inappropriate for the police to oppose bail for a person bailable as of right for the purpose of allowing another state agency to exercise its powers.

[18]	I do not think it appropriate to make a declaration that Mr Maupese was unlawfully detained given the informal manner in which that application was advanced. As I have recorded, Mr Mohammed on behalf of the respondent concedes that Mr Maupese was bailable as of right and should not therefore have been detained.

[19]	Finally, I observe that had the bail decision been made by a District Court Judge, I would have treated the writ application as an appeal against the refusal to grant bail and allowed that appeal. However, Mr Maupese’s right of appeal was to the District Court and not this Court. Given the decision of the community magistrate was wrong in law, the District Court charging documents should be corrected to record that Mr Maupese is bailable as of right.

[20]	I make no further orders. Costs are to lie where they fall.

...................................................
Eaton J

Solicitors:
Crown Solicitors, Christchurch

Counsel:
T D A Harré, Barrister, Christchurch