Toru v Chief Executive of the Department of Corrections

[2021] NZHC 1158

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-249

[2021] NZHC 1158

UNDER

the Habeas Corpus Act 2001

IN THE MATTER OF

an application for a writ of habeas corpus

BETWEEN

TEINA NGATOKUVARU TORU

Applicant

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondent

Teleconference:	18 May 2021
Counsel:	D J Perkins and J B Watson for the Respondent
Judgment:	21 May 2021
Reissued:	10 June 2021

JUDGMENT OF CULL J

[1]                 Mr Toru applies to the Court for an order for a writ of habeas corpus. His application was dated 14 May 2021 and was received by the Registry at approximately

4.50 pm on 14 May. The grounds upon which the writ is sought was expressed as follows:

Contract and Commercial Law Act 2017 s 35(1)(a)(b) and in reliance on the Habeas Corpus Act 2001.

The signature on the application, however, was a third party, Ms Doe.1 Mr Toru, being held at Rimutaka Prison, was the applicant, even though he had not signed the application himself.

1      For privacy reasons, this is an assumed name.

TORU v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZHC 1158 [21 May 2021]

[2]                 Under s 9 of the Habeas Corpus Act 2001 (the Act) the Registrar must allocate a date for the inter partes hearing of an application that is no later than three working days after the date in which the application is filed. Mr Toru, being held at Rimutaka Prison, was the applicant, even though he had not signed the application himself.

[3]                 The application came before me as Duty Judge on 17 May and I directed that the application be served on the Crown and a teleconference be convened with      Mr Toru and a representative of the Crown in attendance. The teleconference call was scheduled urgently for 2.15 pm on Tuesday 18 May 2021. The Registry arranged with the Department of Corrections a facility for Mr Toru to attend the teleconference call at Rimutaka Prison.

[4]                 The Registry was contacted by the third party, Ms Doe who had filed the habeas corpus application and was the signatory on the application. Ms Doe asked the Registry if she could attend on the teleconference call. As she was not a party and her status was unclear, I declined.

[5]                 Ms Doe emailed the Registry asking if a volunteer worker for a charitable trust, Monica Eastick, the CEO of the Polynesian Embassy and Peter Martin of Māori Ranger Security Division could also be in attendance on the teleconference call.

[6]                 At midday, prior to the teleconference call, Crown Law filed a notice of opposition to the habeas corpus application and a memorandum setting out the background and basis on which Mr Toru was lawfully detained and why his application for the writ of habeas corpus should be dismissed.

[7]                 I directed the Registry that the volunteer worker could join the teleconference call and to make contact through the phone number that we had been given by Ms Doe. I record that the Registry attempted to contact the phone numbers sent by Ms Doe, but the Registry was unsuccessful as the numbers did not appear to be active. Further, email contact with Ms Doe was also problematic.

[8]                 At 2.15 pm, the teleconference operator advised that a prison guard had informed her that Mr Toru would not be attending the teleconference call. He refused to enter the booth at Rimutaka Prison to take the call.

[9]                 I directed the Registry to email Ms Doe the memorandum filed by Crown Law with a direction that if she wishes to address the memorandum, she should do so by  5 pm Tuesday 18 May. To date, no reply has been received by the Registry.

Habeas corpus decision

[10]              An application for the writ of habeas corpus is a challenge to the legality of a person’s detention.2 The onus is on the Department of Corrections to establish that the detention is lawful.3

[11]              In their memorandum signed on behalf of the Chief Executive of the Department of Corrections, Crown Counsel set out the basis for Mr Toru’s detention.

[12]              Mr Toru was sentenced by Dobson J on 29 June 2018 to 12 years and nine months’ imprisonment for convictions involving violent and sexual offending against his partner, and attempting to pervert the course of justice.4 Mr Toru had spent 333 days in remand by the time he was sentenced. The attached warrants of commitment signed by Dobson J record that the applicant was imprisoned for a term of 11 years and six months’ imprisonment on 29 June 2018.

[13]              The Chief Executive submits that the warrants demonstrate a lawful basis for Mr Toru’s detention. Appellate authority supports that submission. In Bennett v Superintendent, Rimutaka Prison, the Court of Appeal held that once a Prison Superintendent or other official produces a committal warrant or other authorisation, the applicant must show why the warrants are not a sufficient answer to his application.5 The Court of Appeal stated:

In practice, once a prison superintendent or other official named as the respondent produces a committal warrant or other authorisation … it would

2      Habeas Corpus Act 2001, s 6.

3      Section 14(1).

4      R v Toru [2018] NZHC 1598.

5      Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616 CA at [70].

then 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.

[14]              The onus, therefore, shifts to Mr Toru to show why those warrants are not a lawful basis for his detention. Mr Toru appears to rely on s 35 of the Contract and Commercial Law Act 2017, which is cited as one of the grounds in his brief application for the habeas corpus writ. That provision, however, deals with damages for misrepresentation.

[15]              Crown Counsel submit that Mr Toru appears to be advancing a species of the “sovereign citizen” argument, where applicants claim their imprisonment is in violation of their social contract with the State. I accept Counsels’ submission that these arguments have been consistently rejected by the Courts.6

[16]              I am satisfied that the warrants of commitment produced by the Chief Executive demonstrate a lawful basis for Mr Toru’s detention. Mr Toru has not been able to demonstrate that those warrants do not provide a lawful justification for his detention.

Result

[17]              Mr Toru is lawfully detained and his application for a writ of habeas corpus is dismissed.

Cull J

Solicitors:
Crown Law Wellington, for the Respondent

6      See Warren v Chief Executive of the Department of Corrections [2017] NZSC 20; and Rangitaawa v Chief Executive of the Department of Corrections [2013] NZCA 2.