Whichman v Chief Executive of the Department of Corrections

[2018] NZHC 380

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000367

[2018] NZHC 380

IN THE MATTER

of an application for a Writ of Habeas Corpus

BETWEEN

GEORGE WHICHMAN

Applicant

AND

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing:

9 March 2018

Appearances:

The Applicant in Person

A Ewing for the Respondent

Judgment:

9 March 2018

JUDGMENT OF HINTON J

This judgment was delivered by me on 9 March 2018 at 5.15 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors:

Crown Law, Auckland

Party:

G Whichman

GEORGE WHICHMAN v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2018] NZHC 380 [9 March 2018]

[1]On 8 March 2018, the applicant applied for a writ of habeas corpus.

[2]        Mr Whichman has been convicted and sentenced in the District Court on firearms charges and domestic violence charges.

[3]        He says he has been unlawfully detained for a number of reasons, the principal reasons being that:

(a)He pleaded guilty following a sentence indication for which the District Court Judge had no jurisdiction and therefore everything arising from it is unlawful;

(b)He pleaded guilty under pressure from the Judge and/or his counsel.

(c)The Judge was biased and misled him.

[4]        As a consequence of one or more than one of these matters, Mr Whichman says that the conviction, sentence and consequential warrant of committal are null and void.

[5]        As an additional point, Mr Whichman says that the warrant is for Mt Eden Prison, not Auckland Regional Prison, where he has been held since arrest and where he is not provided with any programmes or other reasonable assistance.

[6]        The law is clear that the application for a writ of habeas corpus has to be dismissed. As Ms Ewing submitted, the matter is put beyond  doubt  by  the  Supreme Court decision of Wallace v Chief Executive of Department of Corrections.1 Mr Wallace was convicted of offences involving violence and was serving a sentence of five years and three months’ imprisonment. He appealed against his conviction and sentence. While the appeal was awaiting hearing, he applied to the High Court for a writ of habeas corpus. The High Court declined to issue a writ, relying on s 14(2)(a) of the Habeas Corpus Act 2001. Both the Court of Appeal and then the Supreme Court upheld that decision. In the words of the Supreme Court on dismissing the application for leave to appeal:

1      Wallace v Chief Executive of Department of Corrections [2012] NZSC 16.

Whilst the conviction and sentence stand, habeas corpus is not available to challenge the imprisonment.

[7]        The Court concluded by saying that the procedural and other matters raised by Mr Wallace in his submissions could not overcome that fundamental point and the proposed appeal therefore could not succeed.

[8]        The same position applies here. Mr Whichman has filed an appeal and an application for judicial review and these are awaiting hearing. In the meantime, the conviction and sentence stand and habeas corpus is not available to challenge the imprisonment.

[9]        Mr Whichman’s point regarding the warrant specifying Mt Eden Prison is answered by s 37(2) of the Corrections Act 2004 which provides that any committal order in any specified prison is sufficient authority for detention in any other prison.

[10]      I explained to Mr Whichman that he did have other options, for example, he could ask the Courts dealing with his judicial review and appeal for a priority hearing under the rules.

[11]The application for a writ of habeas corpus is dismissed.

---------------------------------------------------

Hinton J