Underhill v Chief Executive of the Department of Corrections

[2025] NZHC 1803

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2025-419-0205

[2025] NZHC 1803

UNDER

the Habeas Corpus Act 2001

IN THE MATTER

of an application for a writ of habeas corpus

BETWEEN

WAYNNE UNDERHILL

Applicant

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing:

On the papers

Appearances:

Applicant in person (via telephone) W T Nabney for Mr Honetana

J T Lewis for respondent

Date of judgment:

2 July 2025

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 2 July 2025 at 4.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

W T Nabney, Tauranga Hamilton Legal, Hamilton

UNDERHILL v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2025] NZHC 1803 [2 July 2025]

[1]    Waynne Underhill brings a 30 June 2025 application for a writ of habeas corpus in respect of Rawiri William Honetana, contending Mr Honetana’s detention to be unlawful on grounds “The Warrant is defective because the name on the warrant signed by the Judge is wrong” (original emphasis). I understand from Mr Underhill’s submissions he is Mr Honetana’s uncle; he contends his nephew “is being prosecuted under a fraudulent name ‘WILLIAM RAWIRI UNDERHILL’”. Mr Underhill’s concern is the entirety of the prosecution therefore fatally is flawed.

[2]    There are circumstances in which a person may seek a writ of habeas corpus on behalf of another person who is unable to do so.1 There is no suggestion in the evidence before me Mr Honetana is so unable. His counsel in the criminal proceeding—Bill Nabney, who appeared before me as a courtesy—has no instructions on the application.

[3]    Nonetheless, given the urgency and priority with which habeas corpus applications are to be disposed,2 I assume the application is made with Mr Honetana’s consent. Otherwise I should dismiss the application, as an application for the issue of a writ of habeas corpus is not the appropriate procedure for considering the allegations made by Mr Underhill.3 An incorrect name on a warrant does not of itself render the warrant defective.4

[4]    I have a warrant signed by Judge T V Clark in the District Court at Te Awamutu dated 3 June 2025, directing delivery of one William Kayne Underhill to the Prison at Spring Hill Correctional Facility, after adjournment of the hearing of multiple family violence charges against him (the offending) and his remand in custody for the period of that adjournment. I infer Mr Honetana is detained at that facility on adjournment of those charges against him for remand in custody.

1      Chambers v Police [2024] NZCA 524 at [14], referring to Mathew Downs (ed) Adams on Criminal Law – Rights and Powers (online ed, Thomson Reuters) at [HCSch.04]; and Re Winara Parata (1880) 1 OB & F 31 (SC).

2      Habeas Corpus Act 2001, s 9.

3      Section 14(1A)(b).

4      Criminal Procedure Act 2011, s 379.

[5]    A writ of habeas corpus is to “[restore] the liberty of persons unlawfully detained”.5 I must “enquire into the matters of fact and law claimed to justify the detention”.6 The preliminary onus is on the Department of Corrections to establish the detention is lawful. If so, the onus then shifts to Mr Honetana to show why the warrant does “not in fact provide … lawful justification in the particular circumstances”.7 If the detention is not lawful, I must order the detained person’s release.8

[6]    I am satisfied, by examination of the warrant produced by the Chief Executive, the defendant charged with the offending and remanded in custody after adjournment of the hearing of those charges is detained under a valid warrant signed by a Judge. By “defendant” is meant “any person charged with an offence”.9 Mr Honetana, by whatever name, is the person charged with the offending here. Accordingly, he appropriately is detained.

[7]    The correctness or otherwise of the defendant’s name on the warrant is immaterial, unless occasioning a miscarriage of justice.10 In any event, I only have Mr Underhill’s assertion of the name’s incorrectness and he agrees Mr Honetana is the defendant charged with the offending. I separately am satisfied no miscarriage of justice is given rise by the warrant’s use of any particular name for the defendant. Finally, I note the prosecutor’s advice the forthcoming Crown charge notice will use the defendant’s legal name.

[8]I accordingly refuse the application for the issue of the writ.

—Jagose J

5      Section 5.

6      Section 14(3).

7      Bennett v Superintendent, Rimutaka Prison (No 2) [2002] 1 NZLR 616 (CA) at [70].

8      Habeas Corpus Act, s 14(1).

9      Criminal Procedure Act, s 5 (definition of “defendant”).

10     Section 379.