Easton v Attorney-General, Department of Corrections [2013] NZHC 3028 (14 November 2013)

Last Updated: 5 December 2013

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-8843 [2013] NZHC 3028

BETWEEN BENJAMIN EASTON Applicant

AND ATTORNEY-GENERAL, DEPARTMENT OF CORRECTIONS Respondent

Hearing: 14 November 2013

Counsel: B Easton (in person) S Kinsler for Crown

Judgment: 14 November 2013

_{JUDGMENT OF WILLIAMS J}

[1] The applicant was convicted in April 2011 on two counts of endangering public safety and one count of disorderly behaviour. These counts arose out of protest action over the opening up of Manners Mall to vehicular traffic. He was sentenced to 80 hours community work. He was then resentenced in the District Court on 6 November 2013 to two months’ imprisonment. The resentencing was necessary because he had failed to comply with his community-based sentence. There is no appeal against the resentence.

[2] Mr Easton has now filed an application for a writ of habeas corpus arguing that his detention is unlawful. Mr Easton seeks to draw a distinction between the exercise of State power that has led to his incarceration, and the power and prerogatives of the Sovereign in person. He says that his role is as a public campaigner pointing out corruption and misfeasance in public office that the Sovereign would never countenance. He says such acts are inconsistent with the rule

_{of law.}

EASTON v ATTORNEY-GENERAL, DEPARTMENT OF CORRECTIONS [2013] NZHC 3028 [14 November

2013]

[3] Mr Easton accepts that he has been convicted of the three offences identified, he was duly sentenced and there is a warrant of committal for his imprisonment. He says these exercises of State power are not binding upon him because of his special public function. He says that once the details of official action in breach of the rule of law and the dignity of the Sovereign are able to be pointed out to a court, it will be obvious to that court that the official sanctions levied against him should be treated as unlawful. That at least is the best approximation of Mr Easton’s argument that I can give after several attempts to clarify and crystallise the nature of his argument.

[4] As far as I can tell, the concerns expressed by Mr Easton in relation to exercises of public power do not relate to his conviction and sentence per se. Rather, they relate to other matters. He campaigns and protests about those matters. And as I have said, the convictions in this case relate to one such protest.

[5] For the Crown, Mr Kinsler duly produced a Warrant of Committal for Sentence of Imprisonment. It recorded the date of Mr Easton’s conviction for these offences and the certification by Judge Bill Hastings of the sentence imposed.

[6] It is plain that there is no basis upon which Mr Easton can be granted habeas corpus. The Department of Corrections has produced the required proof of the lawfulness of incarceration. Mr Easton cannot opt out of lawful State sanctions because of some responsibility he feels for campaigning against particular exercises of State power that he considers to be wrongful. In this he would not be upholding the rule of law, but fundamentally undermining it.

[7] Section 14(1A)(b) of the Habeas Corpus Act 2001 provides that this court may refuse an application for a writ of habeas corpus without putting the Department of Corrections to the test if the writ is not the appropriate procedure for considering the allegations made by the applicant. That subsection was introduced in 2013.

[8] Decisions pre-dating that amendment (and obviously confirmatory of it)¹ are to the effect that complex attacks on the exercise of statutory or other discretions

1. See for example Manuel v Superintendant, Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA).

underpinning applications for habeas corpus are best dealt with by way of judicial review rather than through the writ. That is one option available to Mr Easton. To the extent that he alleges misfeasance or corruption in public office, there are also private law processes in tort available to him. Habeas corpus is a summary process quite inapt for the complex allegations Mr Easton appears to be making about wider and perhaps unrelated exercises of public power. The unsuitability of this process is underscored by the fact that Mr Easton asks for his application to be adjourned so that research can be done and evidence prepared in relation to the multiple allegations he appears to make, and that he should be bailed in the meantime.

[9] There is a second and equally fundamental problem with the application. Whatever the merits of the broader allegations Mr Easton would make (but did not go into), it seems most unlikely that they will relate to the legality of his incarceration. They seem to relate to other allegedly unlawful acts. Thus, the application lacks a nexus between the allegations being made and the legality of the detention.

[10] There is also s 14(2) of the Habeas Corpus Act 2001 which curtails the ambit of the inquiry available to a Judge in a habeas corpus application. That subsection provides that the Judge dealing with an application must inquire into matters of fact and law claimed to justify any detention, but (and crucially) that does not entitle a Judge to call into question a conviction entered by a court of competent jurisdiction. In the end, that is what Mr Easton is asking me to do.

[11] There can be no doubt that Mr Easton is lawfully detained.

[12] Mr Easton was convicted and sentenced. There is no basis upon which I, or any subsequent Judge in a later fixture, could by the Habeas Corpus procedure, order Mr Easton’s release. His remedies are appeal or judicial review.

_{[13] The application must be dismissed accordingly.}

Solicitors:

Crown Law, Wellington

Williams J