Craig v Chief Executive of the Department of Corrections [2024] NZHC 202 (16 February 2024)

Last Updated: 24 April 2024

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-425-000017 [2024] NZHC 202

UNDER	the Habeas Corpus Act 2001
BETWEEN	KYLE JAMES CRAIG Applicant
AND	THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Hearing:	16 February 2024
Counsel:	Mr Craig in person K A Courteney for Respondent
Judgment:	16 February 2024

ORAL JUDGMENT OF RADICH J

• [1] On 14 February 2024, Mr Craig filed an application for a writ of habeas corpus. Presently, he is serving a 16-month term of imprisonment in Invercargill Prison following a sentencing decision given just under a month ago.

• [2] The grounds advanced by Mr Craig relate primarily to the merits of the sentencing decision, the merits of the underlying Family Court decisions and the terms of his imprisonment.

• [3] The issue before the Court today is whether Mr Craig’s detention is lawful.

• [4] I begin by describing the sentences that have been imposed.

CRAIG v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2024] NZHC 202 [16 February 2024]

• [5] In a decision of 19 January 2024, Judge Harvey in the Invercargill District Court explained that Mr Craig was facing five charges. Three of them related to Mr Craig having breached a protection order issued against him through having posted on social media certain Family Court documents from the proceeding to which the protection order related.

• [6] Two other charges related to events that occurred when the police approached Mr Craig about the offending to which the protection order charges related. The police found Mr Craig to be in possession of cannabis and Mr Craig refused to give particulars to the police which would have enabled them to unlock his mobile phone.

• [7] The Judge sentenced Mr Craig to 16 months’ imprisonment on the charges relating to breach of the protection order and, concurrently, to one month’s imprisonment on the other charges.

• [8] Mr Craig advances a number of arguments in support of his application both in writing and through the oral submissions that he has made this morning:

(a) He is concerned that he is required to share his cell with another inmate, saying that the work he is undertaking for the Family Court case with which he is involved is hindered and that he should not be affected in this way by the Invercargill Prison muster.

(b) He takes issue with a sentence of imprisonment having been imposed for breaching a protection order in circumstances in which he has expressed a view that a final protection order does not exist.

(c) He has asked what the point of prison is; what it is meant to achieve in circumstances such as this, particularly in cases in which a prisoner has autism.

(d) He is concerned about the way in which the protection order has been applied by others.

(e) He is concerned, despite having pleaded guilty to the charges for which he was sentenced, about the underlying basis for the charges relating to the protection order breach.

(f) He has advanced a number of points about what he sees as being defects in Family Court documents relating to the protection order proceeding, referring to the terms of the documents themselves and to District Court rules.

• [9] In the oral hearing this morning, Mr Craig has explained that he is not challenging the conviction per se but is concerned primarily with the protection order itself and the way in which it has been referred to in the summary of facts and in the sentencing decision. He has referred to concerns about his arrest relating not specifically to someone named in the protection order. He has said that he has an understanding of his acts and omissions but is concerned about the particular protection order that is or is not in place.

• [10] The respondent has submitted that Mr Craig is detained under a valid warrant and that an application for a writ of habeas corpus is not, in terms of s 14(1A) of the Habeas Corpus Act 2001, the appropriate procedure for considering the allegations that Mr Craig is making.

• [11] Ms Courteney has clarified matters today in saying that the protection order breached and the subject of the conviction and sentencing was in fact the temporary protection order that is dated 10 February 2022 and which remains in place. She referred to there being in the summary of facts an error in the sense that the summary of facts referred to the protection order having been made final on another date. The point is made that a breach of a protection order, whether temporary, final or otherwise, is a breach of a protection order and that if any issue was to arise in Mr Craig’s mind then that would be a matter for an appeal court, but that, in any event, the result would be the same in relation to the breach.

• [12] I do observe that in Judge Harvey’s sentencing decision, reference is made broadly to a protection order. I observe also the terms of the temporary protection

order and the way in which the breach that is described by the Judge does align with the terms of that temporary protection order.

• [13] An application for an order under the Habeas Corpus Act allows a person to challenge the lawfulness of their detention.¹

• [14] There is no question but that Mr Craig is detained. Accordingly, the onus passes to the respondent to establish the lawfulness of the detention. This can be achieved by producing the warrant of commitment for a sentence of imprisonment. That warrant is in evidence. The statutory basis for it, and the warrant itself, are all in order.

• [15] That does, on its face, as the respondent submits, provide a complete answer to the application. Under s 14 of the Act, if the defendant fails to establish that the detention is lawful, then the Court must grant a writ of habeas corpus and release the detained person as a matter of right. However, under s 14(2), a Judge is not entitled to call into question a conviction of an offence by a court of competent jurisdiction.

• [16] 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.²

• [17] 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 grounds which lie upstream of apparently regular warrants.³ 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.

• [18] Equally, it is not for the Court in considering an application for habeas corpus to examine conditions of detention. There are other processes that need to be used to

¹ Habeas Corpus Act 2001, s 6.

² Bennett v Superintendent, Rimutaka Prison [2001] NZCA 286; [2002] 1 NZLR 616 (CA) at [70].

³ Manuel v Superintendent, Hawkes Bay Regional Prison [2005] NZCA 496; [2006] 2 NZLR 63 (CA).

challenge either the lawfulness of a conviction or conditions of detention.⁴ I do acknowledge the points that Ms Courteney has made to the effect that Mr Craig may be able, I hope to good effect, to speak with those within the prison about the potential availability of a work space for him.

• [19] Unlike an appeal court, there is no basis for me in the face of an application such as this to consider the basis upon which the protection orders were made, to consider arguments about the integrity of documents in the protection order proceedings, to consider the validity of the protection orders themselves, to consider the basis of the convictions for their breach (entered following Mr Craig’s guilty plea) or to consider the sentencing decision that then followed.

• [20] These are not matters that can fall within the Court’s habeas corpus jurisdiction. They can only be challenged through appeals to the courts in which those orders were made, where those decisions were given.

• [21] Equally, the concerns the applicant has expressed about his conditions in prison can, as I have said, be pursued, for example, with prison management. As the respondent observes, the Act provides quite clearly in s 14(1A) that the Court may refuse an application for the issue of the writ if the appropriate procedure for considering the allegations made by an applicant is not through a habeas corpus application. That is the case here.

• [22] Mr Craig asks what the point of prison is; what it is meant to achieve, particularly for those with autism. I acknowledge the point but I say that this is not the type of question that the Court can address in its habeas corpus jurisdiction, although I do observe that Judge Harvey took Mr Craig’s autism into account carefully both when considering whether a sentence of imprisonment was appropriate and then in making an allowance for, as the Judge put it, “the fact that you do struggle with autism”.

• [23] In this jurisdiction, the Court needs to test the legality of Mr Craig’s detention. I have done that. I am satisfied for all of the reasons that I have given that it is lawful.

⁴ Ericson v Department of Corrections [2014] NZCA 118 at [429].

• [24] Accordingly, the application for a writ of habeas corpus is declined.

Radich J

Solicitors:

Raymond Donnelly & Co, Christchurch for Respondent