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Court of Appeal of New Zealand |
Last Updated: 13 August 2019
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BETWEEN |
GEOFFREY MARTIN SMITH Appellant |
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AND |
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent |
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Hearing: |
24 July 2019 (further material received 26 July 2019) |
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Court: |
Gilbert, Courtney and Wild JJ |
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Counsel: |
Appellant in person V McCall and L Dittrich for Respondent |
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Judgment: |
9 August 2019 at 4.00 pm |
JUDGMENT OF THE COURT
B There is no order as to
costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
[1] This is an appeal from a judgment of Brewer J[1] delivered on 14 May 2019 directing the Registrar of the High Court at Whangarei not to accept for filing documents tendered by the appellant, Mr Smith.
Background
[2] Some brief background is necessary.
[3] The appellant applied on 4 May 2018 to the High Court for a writ of habeas corpus. At the time he was remanded in custody awaiting sentence on drugs charges.
[4] Toogood J dismissed the application in a judgment delivered on 7 May 2018, with reasons following the next day.[2] In his judgment Toogood J:[3]
- (a) expressed himself as satisfied that Mr Smith was lawfully detained under a warrant dated 28 March 2018;
- (b) held that Mr Smith was effectively applying for bail and the Court was precluded from considering bail;[4]
- (c) held that an application for a writ of habeas corpus was not the correct procedure for challenging the jurisdiction of the New Zealand courts;[5] and
- (d) directed the Registrar of any registry of the High Court not to accept a further application for habeas corpus from Mr Smith pending his sentencing.
[5] In the District Court at Manukau on 1 June 2018 Mr Smith was sentenced to five years imprisonment.
[6] Between 18 May 2018 and 21 March 2019 Mr Smith filed further applications seemingly, in some if not all instances, seeking a writ of habeas corpus. These were dealt with successively by Cooke J,[6] Jagose J,[7] Gordon J[8] and Lang J.[9] As these applications are not directly relevant to this appeal, we need do nothing more than record that they were made.
[7] On 3 May this year, and again on 13 May, Mr Smith attempted to file a further document in the High Court.[10] On 3 May the document was rejected by the Registrar at Whangarei, pursuant to the direction Toogood J had given back on 8 May 2018. When Mr Smith sought to file the same document on 13 May, also in Whangarei, the Registrar referred the document to Brewer J for direction as to whether it should be accepted as an application for habeas corpus.[11]
[8] In a judgment delivered on 14 May Brewer J:
- (a) accepted that the Registrar on 3 May had wrongly relied on Toogood J’s direction, as that had expired on 1 June 2018 when Mr Smith was sentenced;[12]
- (b) held the document Mr Smith had sought to file was not an application for a writ of habeas corpus. The Judge quoted from the body of the document:[13]
- This is not a challenge to the legality of the detention of a legal person/company entity.
- (c) noted the document did not seek any relief from the Court;[14]
- (d) held the document should not be accepted for filing because it was unintelligible and did not comply with any of the High Court Rules 2016 for the filing of documents;[15]
- (e) (insofar as the document raised an issue as to the correct identity of Mr Smith), held that was not an issue for which application under the Habeas Corpus Act 2001 was the correct procedure;[16] and
- (f) expressed the view that Mr Smith’s documents were “gibberish” and that “To accept them and somehow act on them would be an abuse of the process of the Court”.[17]
[9] Appearing before us, Mr Smith confirmed he was seeking to appeal Brewer J’s judgment, essentially on the ground that the Judge had misunderstood the nature of the document Mr Smith had attempted to file. Mr Smith’s position is that the document was an application for a writ of habeas corpus and Brewer J had erred in holding otherwise. Mr Smith confirmed that he was seeking to challenge the lawfulness of his detention pursuant to the warrant issued by Judge Moala on 1 June 2018, upon sentencing him to 5 years’ imprisonment.
[10] For the respondent, Ms McCall accepted the warrant under which Mr Smith was detained at the time Toogood J gave his judgment was a different warrant from that under which Mr Smith was detained when Brewer J gave his judgment. The first warrant detained Mr Smith in custody pending sentence, the latter committed him to prison upon sentence. However, Ms McCall points out that the documents the two Judges were dealing with advanced essentially the same “identity” argument. Although this argument is not easy to comprehend, its essence appears to be that the warrants were both for the detention of Geoffrey Smith, but the person detained, and the applicant to the High Court on both the successive occasions, was not Mr Smith but rather “S-I-R-Crown; 1953150853, in body, Sovereign/Crown/Living Man”.[18]
[11] On that basis, Ms McCall makes two submissions for the respondent. First, Brewer J rightly directed the Registrar not to accept the documents for filing as an application for a writ of habeas corpus because s 14(1A)(a) of the Habeas Corpus Act applied. That provides:
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; ...
Section 15(1), in turn, provides that, subject to rights of appeal:
... the determination of an application is final and no further application can be made by any person either to the same or to a different Judge on grounds requiring a re-examination by the court of substantially the same questions as those considered by the court when the earlier application was refused.
[12] In short, the grounds for the application dealt with by Brewer J were substantially the same as those in the application dealt with by Toogood J. The application dealt with by Brewer J was thus proscribed by ss 14(1A) and 15(1). The Judge rightly stopped it at the threshold.
[13] Second, and an overlapping point, an application for a writ of habeas corpus is not the appropriate procedure for consideration of the “identity” argument advanced in the applications both to Toogood J and to Brewer J. We have already explained our understanding of this argument: the person seeking the writ of habeas corpus is not the prisoner. Although, unsurprisingly, courts have struggled to elucidate these arguments, they have been uniformly dismissed.[19]
[14] As Ms McCall pointed out, the same “identity” argument is contained in Mr Smith’s notice of appeal, for example its statement “very clearly there are two identities”.
[15] In reply, Mr Smith confirmed he wished again to raise the “identity” issue. He told us “I am S-I-R-Crown: 1953150853. I am not Geoffrey Martin Smith”. But Mr Smith told us he also sought to challenge the validity of the warrant pursuant to which he is currently imprisoned. He embarked on an outline of the basis on which he would seek to do this. We stopped Mr Smith because the grounds he was outlining, if they do provide a basis for seeking a writ of habeas corpus, are properly addressed to the High Court at first instance, and were not a subject for this appeal.
[16] It was clear we could not deal with the respondent’s arguments without having copies of the documents considered by Toogood J and Brewer J respectively. As the respondent did not have them available in Court, we asked that they be provided to us. We now have them. Having considered these documents, our views are these. First, the substance of the affidavit filed by Mr Smith in support of the application for a writ of habeas corpus dealt with by Toogood J is dual identity. Like the Judge, we confess to not understanding the content of the affidavit, but its tenor emerges from these two paragraphs:
- The Birth Certificate being indicia of a Corporation/transmitting-utility or other creature of commerce trading in the public while remaining undischarged has through its Guardians, Officers, Administrators Agents or assigns by mischievous, deceitful, obscure and forceful methods induced the Petitioner to become security for the commercial activities carried on its name; ...
...
...
[17] Second, dual identity is also the subject matter of the document considered by Brewer J. Again, we share the Judge’s difficulty in understanding this document. But the following parts of it indicate its tenor. In the intituling, the following:
Between ;S-I-R-Crown; 1953150853, in body,
Sovereign/Crown/Living Man
And Geoffrey Martin Smith
Legal Person/Company, Trademark, Copyright,
Securitised
And in the body of the document the following:
[18] Third, as Ms McCall submits, the grounds that Mr Smith advanced in the document considered by Brewer J would have required “a re-examination by the court of substantially the same questions as those considered by the court (that is, by Toogood J) when the earlier application was refused”.
[19] It follows that, in terms of s 14(1A), Brewer J rightly directed the Registrar not to accept for filing the document Mr Smith had attempted to file on 3 May and again on 13 May this year. Brewer J did not, as Mr Smith contends, misunderstand the nature of that document. Accordingly, this appeal cannot succeed.
Result
[20] The appeal is dismissed.
[21] There is no order as to costs.
Solicitors:
Crown Law Office,
Wellington for Respondent
[1] Smith v Chief Executive of the Department of Corrections [2019] NZHC 1054.
[2] Martin v Chief Executive of the Department of Corrections [2018] NZHC 980.
[3] At [24]–[26].
[4] Habeas Corpus Act 2001, s 14(2)(b).
[5] Section 14(1A).
[6] Minute of Cooke J dated 18 May 2018 at [3].
[7] Smith v Chief Executive of the Department of Corrections [2018] NZHC 2380 at [4]–[6].
[8] Smith v Chief Executive of the Department of Corrections HC Auckland CIV-2019-404-336, 1 March 2019 at [11].
[9] Smith v Chief Executive of the Department of Corrections, above n 1, at [5].
[10] At [6]–[7].
[11] At [8].
[12] At [7].
[13] At [9].
[14] At [10].
[15] At [11].
[16] At [12]; and Habeas Corpus Act, s 14(1A).
[17] At [13].
[18] From the intituling of the document considered by Brewer J.
[19] For instance, in Martin v Chief Executive of the Department of Corrections [2016] NZHC 2811 at [20]–[24]; and Meenken v Family Court at Masterton [2017] NZHC 2103 (not a habeas corpus case).
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