CAMERON SHAW, JANE MAXINE SHAW, RIKIHANA JAMES PORTER, TE ARA HOU RIKIHANA MIHIKOTUKUTUKU, DALE SHAW, PIKIHUIA HAENGA, MARTIN SHAW s AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

[2024] NZHC 2980

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-000626

[2024] NZHC 2980

UNDER

the Judicial Review Procedure Act 2016

BETWEEN

CAMERON SHAW, JANE MAXINE SHAW, RIKIHANA JAMES PORTER, TE ARA HOU RIKIHANA

MIHIKOTUKUTUKU, DALE SHAW, PIKIHUIA HAENGA, MARTIN SHAW
Applicants

AND

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Defendant

Hearing:	Sunday, 13 October 2024
Counsel:	F E Geiringer for Applicants A M Powell for Defendant
Judgment:	13 October 2024

ORAL RESULTS JUDGMENT OF RADICH J

[1]       First of all, I want to acknowledge Mr Shaw. I acknowledge the position that you take in terms of your wish to exercise your own set of choices. The Court has endeavoured to do all that it can for you in the decision that was made last Thursday and with further reasons on Friday, upholding and respecting the advance directive that you have given to everyone around you.

[2]       That was a difficult position for everybody – certainly, there were options either way, but at the end of the day it was important, for the reasons I have expressed in the written decision, to respect your wishes.

SHAW v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2024] NZHC 2980 [13 October 2024]

[3]       Where we come now is to address, either the narrow grounds and circumstances of the application your family has made in the first instance for habeas corpus or, secondly, the judicial review remedy of urgent interim orders.¹ For reasons that were discussed last week,² I have not seen it as being appropriate to grant an application for habeas corpus. Courts have recognised on a number of occasions that challenges to the lawfulness of a conviction can be brought by habeas corpus whereas challenges to the conditions of imprisonment are best dealt with by judicial review. It is in those circumstances that the Court is not in a position to grant habeas corpus but has, today, considered – without papers having been filed – an application effectively for interim orders, for urgent orders, in a judicial review proceeding that would be brought in due course.

[4]       Interim orders in judicial review are subject to a very clear test and the test is whether or not the orders are necessary to preserve the position of the applicants. In the circumstances here, I cannot find the grounds to apply that test positively to make the orders that are sought.

[5]       When one looks at preservation of the position, the thing that is sought to be preserved here is a decision on Mr Shaw’s part that he will decline to take fluids in a certain room. Again, as I have said, Mr Shaw’s wishes are respected but this is a position that is taken by Mr Shaw. The position that is in fact operative here is that Corrections will do all that it can to help Mr Shaw. It will do all that it can to provide nourishment to him whenever he chooses to have it.

[6]       Reasons have been given by Corrections, in a draft affidavit last week, as to the ability, or inability as the case may be, for Mr Shaw to be housed in certain parts of the prison. I do not go into those reasons now except to say that they appear on their face to provide a level of justification for Mr Shaw’s current accommodation but it is not necessary for me to make a final decision on it here. What I can say is that,

¹  At a little after 11 am on Sunday, 13 October 2024, the Court became aware that Mr Geiringer was seeking an urgent hearing on the basis that urgent intervention was needed over Mr Shaw’s conditions at Rimutaka Prison and that Mr Shaw believed that he may not be alive on Monday, 14 October.  The Court arranged a hearing at 4 pm on Sunday, 13 October accordingly. At 3.15 pm, the applicants filed an application for interim orders in a judicial review proceeding, yet to be filed.

²   Addressed in Chief Executive of the Department of Corrections v Shaw [2024] NZHC 2976.

while I accept entirely the very well motivated basis for Mr Shaw’s family, for his whānau, to be involved – I acknowledge and respect their genuinely held concerns for Mr Shaw’s welfare, a concern I think that everybody holds – this is not a case in which the preservation of a position test can be satisfied. It is not the case, as I see it, that maintaining the current position would lead to Mr Shaw’s death and that is because, as I say, the current position is a position that Mr Shaw has chosen and can change.

[7]       For those reasons, which I will express more fully tomorrow, I cannot accept the application. It is declined accordingly.

Addendum

[8]       My oral decision referred to a fully reasoned decision being available on Monday, 14 October 2024. My schedule as duty judge may not in fact allow that but I will make the decision available as soon as I can.

Radich J

Solicitors/Counsel:

Crown Law Office, Wellington for First Plaintiff Woodward Law, Lower Hutt for Interested Parties