Taylor v Superintendent, Waikato Bay of Plenty Regional Prison [2002] NZCA 45; (2002) 6 HRNZ 679; [2002] NZAR 425 (7 February 2002)

Last Updated: 16 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA27/02

	BETWEEN	ARTHUR WILLIAM TAYLOR
		Appellant

	AND	THE SUPERINTENDENT OF THE WAIKATO BAY OF PLENTY REGIONAL PRISON
		Respondent

Hearing:	7 February 2002
Coram:	Gault J Keith J Blanchard J
Appearances:	D A Ewen for Appellant J C Pike for Crown
Judgment:	7 February 2002

JUDGMENT OF THE COURT DELIVERED BY GAULT J

[1] As is required under s17 Habeas Corpus Act 2001 we have heard as a matter of priority an appeal from the refusal by Goddard J in the High Court at Hamilton of a writ of habeas corpus ordering release of the appellant from detention on remand.
[2] After having been remanded in custody on charges including one of receiving property known to have been dishonestly obtained, the appellant appeared at the District Court at Hamilton on 31 January 2002. There has been no explanation of why, having been remanded to appear at Marton, he appeared at Hamilton. Before Community Magistrates, Mr Ewen, as Duty Solicitor, applied for bail on behalf of the appellant. The police opposed, but the appellant was remanded on bail to 20 February 2002 for a further appearance at Marton.
[3] After the order was made, but before a bail bond was signed, the Registrar drew to the attention of Judge Tompkins, who was also sitting in Hamilton, the facts that the file was noted to the effect that s12(1)(b) of the Bail Act 2000 applied and that the appellant had previous convictions. The Judge was satisfied that there arose a question of whether the Community Magistrates had the power to grant bail in view of s12(4). On his own motion he had the matter called before him and after hearing counsel and the police, delivered a decision “On Review of Bail Application”. He concluded:

Since he has arrived at the Hamilton District Court this morning he has remained in the custody of the Court. Although the Community Magistrates this morning purported to grant him bail, that decision seems not to have been given effect to by the completion of the appropriate document and Mr Taylor’s release from the custody of the Court. It was in those circumstances that, on my motion, and once I had been advised as to the potential absence of jurisdiction by the Community Magistrates, Mr Taylor has appeared in this Court again.

In those circumstances I take the view that the absence of jurisdiction, or the potential absence of jurisdiction, of the Community Magistrates is sufficient at least to raise the possibility that their decision this morning was a nullity, and that the question of a further application for bail remains properly in this Court. I therefore consider that I do have jurisdiction properly to reconsider the question of bail, Mr Taylor not having been admitted to bail today. Mr Ewen advises, however, that he, as duty solicitor, is not in a position today to advance a fully argued application for bail.

[4] The Judge ordered “continuation of Mr Taylor’s present remand status until Monday 4 February” when he was to be brought before the District Court at Hamilton – presumably for full investigation of the applicability of s12(1)(b) and any bail application, although by then counsel had indicated the intention to take the matter to the High Court.
[5] The application for a writ of habeas corpus was heard urgently by Goddard J on 5 February. She declined the application resulting in the present appeal.
[6] The argument for the appellant is that the grant of bail by the Community Magistrates was wrongly interfered with, that Judge Tompkins had no jurisdiction in the absence of an appeal under s40(2) of the Bail Act to enter upon the matter and that his order for continued remand custody was made without jurisdiction.
[7] Goddard J recorded in her judgment the following:

Mr Taylor was duly brought before the District Court yesterday, 4 February, and the habeas corpus application was called before me this morning. On reading the papers filed I had reached a preliminary view that this was not a habeas corpus situation but simply a situation requiring a practical solution. It appeared three possible approaches could be taken. First, if the decision of the Community Magistrates were indeed a nullity, because s12(b) applied (as accepted by the Court on 14 January 2002 and noted on the record), then the situation of custodial remand had been validly rolled over since that time and Mr Taylor lawfully detained. Thus I needed to take no step. Secondly, if the Community Magistrates had jurisdiction to grant Mr Taylor bail on 31 January 2002, then Judge Tompkins also had jurisdiction to reconsider their decision on appeal (by virtue of s12(3) Bail Act 2000) and could have done so had Mr Ewen not intervened to forestall the making of such a determination on appeal. (In this regard I do not accept the argument that Judge Tompkins could not assume appellate jurisdiction simply because the police had not filed a formal notice of appeal. Given the suspected irregularity of the morning’s proceeding, Judge Tompkins would have been acting properly to correct an error and thus regulate the processes of the District Court.) On this second approach, as Judge Tompkins had not actually gone on and determined the bail question on appeal, it was open to me to complete the exercise on review. The third approach which appeared open was for me to receive and hear an original bail application from Mr Taylor. In this regard I do not believe that the High Court is precluded from doing so in a situation where no appeal arises from a decision of the District Court.

[8] The Judge did not elaborate upon why she did not consider the circumstances to raise a habeas corpus situation but she may have had in mind s14(2)(b) of the Habeas Corpus Act disentitling a Judge on a habeas corpus application to call into question “a ruling as to bail by a court of competent jurisdiction”.
[9] In any event the Judge refused the application stating:

The outcome of this morning’s hearing was that I refused to issue a writ of habeas corpus for the reason that I find Mr Taylor is not being unlawfully detained. He was lawfully remanded in custody on 12 January 2002 when the Court accepted that s12(b) applied. The fact that a challenge has subsequently been mounted does not mean the custodial situation has not been lawfully rolled over from that time to the present. Notwithstanding my view on this, I advised Mr Ewen that I would now receive and determine a bail application by Mr Taylor, as Judge Tompkins had in the end made no determination on bail. On that basis I would not be sitting on appeal from Judge Tompkins by way of rehearing but would be considering the matter quite afresh. Any such hearing could include a challenge to the s12(b) situation, if desired.

[10] In argument before us, Mr Pike for the respondent submitted that s14(2)(b) of the Habeas Corpus Act provides a complete answer to the application. We agree. The appellant is presently detained pursuant to the successive orders of Judge Tompkins and Goddard J that he be remanded in custody. Those orders were made pending clarification of the status of the grant of bail on his application. Both Judge Tompkins and Goddard J were required under s7(5) of the Bail Act to release the appellant unless satisfied there was just cause for continued detention. Both ordered continued detention. The decisions therefore were “rulings as to bail”.
[11] Mr Ewen’s submission was that the decision of Judge Tompkins was made without jurisdiction and that Goddard J should have so ruled, leaving the grant of bail by the Community Magistrates to stand. This highlights the different meanings carried by the term jurisdiction. We are concerned with the meaning it bears in s14(2)(b) in the provision “a ruling as to bail by a court of competent jurisdiction”.
[12] This issue arose in Re Kestle [1980] 2 NZLR 337, 346. The distinction is highlighted in the following passage.

A reading of those cases indicates the use by the Courts of the writ of habeas corpus to review questions of jurisdiction and we are satisfied that it does so exist for such purpose. We now look at the meaning to be given to “jurisdiction”.

The meaning of the term “jurisdiction” was considered by the Court of Appeal in Garthwaite v Garthwaite [1964] P 356; [1964] 2 All ER 233 where Diplock LJ said:

As was pointed out by Pickford LJ in Guaranty Trust Company of New York v Hanny & Co [1915] 2 KB 356, the expression ‘jurisdiction’ of a court may be used in two different senses, a strict sense ... and a wider sense ....In its narrow and strict sense the ‘jurisdiction’ of a validly constituted court connotes the limits which are imposed upon its power to hear and determine issues between persons seeking to avail themselves of its process....In its wider sense it embraces also the settled practice of the court as to the way in which it will exercise its power to hear and determine issues which fall within its ‘jurisdiction’ (in the strict sense) (ibid, 387; 241).

The test of jurisdiction was expressed very succinctly in Nakhla v McCarthy [1978] 1 NZLR 291 where Woodhouse J said at p 301:

As Roper J rightly said in his judgment, ‘”Authority to decide” is the test, not the mode of decision nor the manner in which the powers ... have been exercised or not exercised’.

[13] The District Court had jurisdiction to hear and determine applications for bail. In that sense it was a court of competent jurisdiction. That it may have dealt with the particular matter incorrectly cannot detract from that. Errors including jurisdictional errors can be remedied. But the Habeas Corpus Act is not the means by which that is done.
[14] Re Kestle was decided long before the Habeas Corpus Act was enacted. But in excluding relitigation of the merits of bail decisions the Act merely enacted the existing law as appears from the Law Commission Report which preceded the Act: NZLC R44, C15. Further, as a matter of policy, we see no need for resort to habeas corpus in a situation in which full rights of appeal, including further appeal from the District Court to the High Court as of right are provided in the Bail Act (ss40-42). There is thus no call for reading down the words of s14(2)(b) of the Habeas Corpus Act.
[15] In the circumstances the appellant should have submitted to the course proposed by Judge Tompkins to have the issues of the applicability of s12(1)(b) (seemingly accepted up to 31 January 2002) and his entitlement to bail determined, subject to a right of appeal to the High Court.
[16] So far as concerns the present appeal, we are satisfied that a writ of habeas corpus is not available to the appellant and his appeal is dismissed.

Solicitors
Crown Law Office, Wellington