Whichman v Chief Executive of the Department of Corrections

[2019] NZHC 747

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-000596

[2019] NZHC 747

BETWEEN

GEORGE WHICHMAN

Applicant

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing:	05 April 2019
Appearances:	Applicant in person by VHL R W Belcher for Respondent
Judgment:	9 April 2019

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 09 April 2019 at 3.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors:

Meredith Connell, Auckland

WHICHMAN v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZHC 747 [9
April 2019]

Introduction

[1]                 On 5 April 2019, George Whichman filed a writ of habeas corpus under the Habeas Corpus Act 2001 challenging the lawfulness of his detention in the Mt Eden Corrections Facility in Auckland.

[2]                 Mr Whichman appeared before me by audio-visual link on the afternoon of Friday, 5 April 2019.1 Mr Belcher appeared for the Crown.

[3]                 Mr Whichman is currently remanded in custody awaiting re-trial in the District Court on firearms and domestic violence charges after his earlier conviction and sentencing on those charges had been quashed by the Court of Appeal.2

[4]                 Mr Whichman’s application is made on the grounds that he is being held pursuant to an invalid warrant because:

(a)The warrant describes his status as “Convicted and Sentenced” whereas his correct status is “Remand Accused Detained”; and

(b)As a consequence of that incorrect description, he is being held with convicted prisoners rather than accused persons on remand which is in breach of Article 10 of the International Covenant on Civil and Political Rights.

[5]                 Mr Whichman’s application was brought initially against the Manukau District Court, which issued the warrant, and the Department of Corrections, Mt Eden Prison. On the application of Mr Belcher, I struck out the Manukau District Court, which is not detaining Mr Whichman, and substituted the Chief Executive of the Department of Corrections for Mt Eden Prison as the sole respondent.

1      Pursuant to s 14A of the Habeas Corpus Act 2001, an application for habeas corpus is a civil proceeding for the purposes of the Courts (Remote Participation) Act 2010.

2      Whichman v R [2018] NZCA 519.

Analysis

[6]                 This is the third time this year that Mr Whichman has filed a writ of habeas corpus alleging these or similar grounds. On the two earlier occasions:

(a)Lang J noted that the warrant on which Mr Whichman was then being held, which had been signed by Judge Field on 9 January 2019, correctly advised  the  Manager  of  the  Corrections  prison  where  Mr Whichman was being held, that the hearing of the charges against Mr Whichman had been adjourned, and that he had been remanded in custody for the period of the adjournment. Accordingly, Lang J held that the warrant provided the necessary authority for Mr Whichman to be detained in custody during the period of the adjournment and was valid even if it incorrectly stated that Mr Whichman had been convicted and sentenced.3

(b)Downs J noted that the contention that a detention is unlawful if an accused person is housed with sentenced prisoners rather than those on remand had been rejected by the Court of Appeal in Bennett v Superintendent of Rimutaka Prison. In that decision, the Court of Appeal had held that the lawfulness of the conditions of incarceration lies beyond the writ of habeas corpus and the Habeas Corpus Act.4 Accordingly, Downs J held that Mr Whichman’s complaint lay beyond the scope of his application and dismissed the application.5

[7]                 The warrant on which Mr Whichman is currently being held was signed by Judge Earwaker on 25 March 2019. Like the warrant considered by Lang J and warrants signed by Judges Earwaker and Lovell-Smith on 4 March 2019 and 20 March 2019, the warrant signed by Judge Earwaker on 25 March 2019 advised the Manager of the Corrections prison where Mr Whichman is being held – in this case, the Mt

3      Whichman v Chief Executive of Department of Corrections [2019] NZHC 5 at [7]-[8].

4      Bennett v Superintendent of Rimutaka Prison [2002] 1 NZLR 616 (CA) at [65].

5      Whichman v Chief Executive of Department of Corrections [2019] NZHC 468 at [29]-[30].

Eden Corrections Facility – that the hearing of the charges against Mr Whichman has been adjourned and that he has been remanded in custody for the period of the adjournment. Accordingly, the warrant provides the necessary authority for Mr Whichman to be detained in custody during the period of the adjournment and is valid. The fact that the warrant, like the earlier warrants, incorrectly records “Convicted and Discharged” against two of the four charges that Mr Whichman faces is regrettable but it does not affect the validity of the warrant, as Lang J has already held.6

[8]                 With regard to his second ground, Mr Whichman sought to persuade me that the decision in Bennett is no longer applicable because the law has moved on since Bennett was decided. In support of this contention, Mr Whichman referred to the entry into force of the Habeas Corpus Act 2001 which occurred after the application in Bennett had been made. Although he did not do so, Mr Whichman might also have referred to the Corrections Act 2004 which replaced the Penal Institutions Act 1954. That, now repealed, Act had provided the authority for the detention of Mr Bennett.

[9]                 Despite these developments, Mr Whichman’s contention that Bennett is no longer good law is not correct. In Bennett, the Court of Appeal specifically had regard to the Habeas Corpus Act 2001, stating that it did not consider that the 2001 Act had brought any relevant change to the law of habeas corpus.7 Accordingly, there is no basis for holding that Bennett no longer applies because of the entry into force of the Act.

[10]              The replacement of the Penal Institutions Act 1954 by the Corrections Act 2004 also does not assist Mr Whichman. Like the Penal Institutions Act, the Corrections Act provides the legal authority for detention. Section 34(3) of the Corrections Act provides that any person may be held in custody on remand in any corrections prison designated for the purpose by the chief executive of the Department of Corrections. Section 38 provides that the chief executive has legal custody of every person lawfully detained in a corrections prison.

6      It appears that the same notation was recorded against the other two charges but was subsequently “twinked” out.

7      Bennett v Superintendent of Rimutaka Prison [2002] 1 NZLR 616 (CA) at [63].

[11]              The Court of Appeal in Bennett held that if a prisoner is treated unlawfully while being detained, that does not render the detention itself unlawful. It went on to record that the appropriate way for testing the lawfulness of conditions of detention is by way of an application for judicial review.8 On that occasion, the Court was referring to the conditions of detention of sentenced prisoners. The point applies equally to the conditions of detention of accused persons held on remand.

[12]              If Mr Whichman is being held with convicted and sentenced prisoners, there may be an issue of consistency with New Zealand’s international obligations,9 even if there is no explicit requirement in the Corrections Act or in the New Zealand Bill of Rights Act 1990 that accused persons on remand are to be held separately from convicted prisoners. However, for the reasons stated by the Court of Appeal in Bennett, that issue may be raised by way of judicial review but it may not be raised by way of a writ of habeas corpus. The same applies to the other contentions put forward in Mr Whichman’s written application; namely, that his detention with convicted and sentenced prisoners is inconsistent with ss 22, 23(5) and 25(a) and (c) of the New Zealand Bill of Rights Act.10

[13]              Mr Whichman is aware of the availability of judicial review for pursuing his complaints but says that remedy is too slow to be useful. That is not correct.

8 At [65].

9      Article 10(2)(a) of the International Covenant on Civil and Political Rights provides:

Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as convicted persons.

10     Sections 22, 23(5), and 25(a) & (c) of the New Zealand Bill of Rights Act 1990 provide: s 22:   Everyone has the right not to be arbitrarily arrested or detained.

s 23(5):Everyone who is arrested for an offence and is not released shall be brought as soon as possible before a court or competent tribunal.

s 25:Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

(a)     the right to a fair and public hearing by an independent and impartial court:

(b)    …

(c)     the right to be presumed innocent until proved guilty according to law:

An application for judicial review MAY be heard swiftly if the circumstances require. But technical challenges of the kind that Mr Whichman has made on this and earlier occasions are unlikely to merit that degree of urgency.

[14]              I explained to Mr Whichman at the hearing that he may not use the habeas corpus procedure to try to leap frog the judicial system. He needs to bear that in mind if he considers bringing any future application for habeas corpus.

Concluding observations

[15]              Having regard to s 15(1) of the Habeas Corpus Act, it would have been open to me to decline Mr Whichmans’s application on the basis that Mr Whichman was seeking a re-examination of substantially the same questions as those considered by Lang J and Downs J.11 Until I had heard from Mr Whichman, however, I was not sure if he was seeking to raise some new ground. But because it appeared from the application that Mr Whichman was raising questions that had already been considered, I determined that a hearing by audio-visual link was appropriate on this occasion, having regard to the criteria in s 5 of the Courts (Remote Participation) Act 2010.

[16]               Any further application for habeas corpus from Mr Whichman that raises substantially the same questions that Mr Whichman has raised before me and before Lang and Downs JJ would warrant dismissal without a hearing.

[17]              Nonetheless, I understand Mr Whichman’s frustration that warrants for his detention continue to record “Convicted and Discharged” against the charges Mr Whichman faces, under the column headed “Charge Outcome”. Those entries are wrong because the Court of Appeal has quashed those convictions. The error is particularly regrettable if it is used to determine where Mr Whichman is detained

11     Section 15(1) of the Habeas Corpus Act 2001 provides:

Subject to the rights of appeal conferred by section 16 of this Act and to sections 68 to 71 of the Senior Courts Act 2016, the determination of an application is final and no further application can be made by any person either to the same or to a different Judge on grounds requiring a re- examination by the court of substantially the same questions as those considered by the court when the earlier application was refused.

within the Corrections facility. I have asked Crown counsel to assist in ensuring that the error is corrected and is not repeated in the future.

G J van Bohemen J