Kawenga v Chief Executive, Department of Corrections

[2025] NZHC 2320

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2025-409-423

[2025] NZHC 2320

BETWEEN

TANGIWAI CHARLES NEWLYN KAWENGA

Applicant

AND

CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS

Respondent

Hearing:	13 August 2025
Appearances:	Applicant in person (via AVL) W S Taffs for Respondent
Judgment:	15 August 2025

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 15 August 2025 at 11.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

KAWENGA v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2025] NZHC 2320 [15

August 2025]

[1]Mr Tangiwai Kawenga applies for a writ of habeas corpus.

[2]He is currently in custody facing the following criminal charges:

(a)importing a Class A controlled drug (heroin);

(b)importing a Class B controlled drug (MDMA) (x 3);

(c)possession of a Class B controlled drug for supply (MDMA);

(d)failing to carry out obligations in relation to a computer search;

(e)importing a precursor substance for unlawful use;

(f)importing a Class A controlled drug (Carfentanil).

[3]                 Mr Kawenga was arrested and charged on or about 6 May 2025 and was initially granted bail. However, on 11 June 2025, following a breach of bail by possessing a cell phone in contravention of his bail conditions, Mr Kawenga was remanded in custody by a community magistrate.

[4]                 It does not appear that he has applied for bail since that remand in custody. Instead he has continued to be detained at Christchurch Men’s Prison by virtue of warrants issued by District Court Judges with the most recent one being a warrant issued by Judge K J Elkin on 30 July 2025 remanding him in custody until his appearance, by way of AVL, at the Christchurch District Court at 10 am on 25 August. Mr Kawenga did not disagree with that general description of what had happened, although he was unsure of the exact dates.

Legal principles applying to an application for a writ of habeas corpus

[5]                 An application for a writ under the Habeas Corpus Act 2001 (the Act), allows a person to challenge the lawfulness of their detention.1 In most applications for the issue of a writ, the first question to be determined is whether the applicant is detained.

1      Habeas Corpus Act 2001, s 6.

[6]                 If the Court determines that the applicant is detained, the onus passes to the person or entity detaining the applicant to establish the lawfulness of the detention.

[7]                 Where the respondent can produce a warrant of detention, there will be little scope to argue the person’s detention is not lawfully justified.2 In Bennett v Superintendent Rimutaka Prison, the Court of Appeal said that if such authorisation is produced by the respondent, then it would be “necessary for an applicant for habeas corpus to demonstrate that the documentation did not in fact provide a lawful justification in the particular circumstances.”3

[8]                 The Act also provides that the High Court may refuse an application for the issue of a writ if it is satisfied that an application for the issue of a writ is not the appropriate procedure for considering the allegations made by the applicant.4 The Act also precludes a Judge from calling into question a ruling as to bail by a Court of competent jurisdiction.5

[9]Bearing those principles in mind I turn now to the application in question.

Submissions for the applicant

[10]              The primary basis on which Mr Kawenga sought to challenge his remand in custody was to question the lawfulness of the charges themselves. He sought clarification that they were brought under the Misuse of Drugs Act 1975 because the offence provisions referred to a “person” committing an offence. In his submission, this did not encompass him as a “man”. He also endeavoured to argue that, by virtue of the State-Owned Enterprises Act 1986, the Crown (which is defined in that Act to mean “the Sovereign in right of New Zealand”) was a company and a company could not charge him with criminal offences. Both those arguments are plainly meritless. “Person” clearly includes both men and women and nothing in the State-Owned Enterprises Act suggests the Crown is a company.

2      Hyslop v Chief Executive of the Department of Corrections [2021] NZHC 2719.

3      Bennett v Superintendent Rimutaka Prison [2002] 1 NZLR 616 (CA) at [70].

4      Section 14(1A)(b).

5      Section 14(2)(b).

[11]              He also sought to engage in a debate about whether, if Mr Taffs was appearing as an agent of the Crown, that made him (Mr Kawenga) a principal, although it was difficult to see how such a debate shed any light on the lawfulness of his detention.

[12]              Notwithstanding the similarity between some of the arguments Mr Kawenga sought  to  advance  and  those  espoused  by  the  sovereign  citizen   movement,   Mr Kawenga denied that he was advancing sovereign citizen arguments.

Discussion

[13]              It is clear from the District Court records that there has been no formal application for bail. For this reason, Mr Taffs was hesitant to suggest that s 14(2)(b) of the Act applied which precludes this Court from issuing a writ where “a Court of competent jurisdiction has made a ruling as to bail”. That said, despite there being no written decision, I consider that, in effect, the District Court has, by remanding the defendant in custody following each adjournment, in practical terms, determined that bail was not appropriate. In any event, there is a warrant to detain in force, issued by a District Court Judge and in the absence of any intelligible argument to bring the legality of that warrant into question there is no basis on which I could find the detention unlawful.

[14]              Furthermore, even if Mr Kawenga had produced an intelligible argument as to why he should not be in custody I would have declined the application on the ground that a habeas corpus application was not the best procedure for considering the application. If Mr Kawenga considers his risks can be sufficiently managed on bail, such that it is in the interests of justice that bail be granted, then he should pursue an application for the same. If, however, his key arguments are that the charges themselves were not properly brought, then that is a matter to be argued in the substantive criminal proceedings.

[15]              Accordingly, because Mr Kawenga is subject to a warrant to detain issued by a Court of competent jurisdiction, and because he has raised no argument which would

warrant going behind what is an apparently regular warrant,6 I decline the application for a writ of habeas corpus.

Solicitors:
Crown Solicitor, Christchurch

Copy to:
Mr Kawenga

6      Manuel v Superintendent Hawkes Bay Regional Prison [2005] 1 NZLR 161.